August 2022 - Parks & Recreation - 30

LAW REVIEW
the circumstances would know, or
should know, that his conduct will in
all probability prove disastrous. "
The federal
district
court
also
recognized, " the requirements for
alleging willful or wanton misconduct
(i.e., gross negligence) are different
than those for alleging negligence " :
While a plaintiff alleging negligence
must prove merely that some
harm is possible, a plaintiff alleging
willful or wanton misconduct
must prove a substantial probability
of serious physical harm.
Citing precedent from the
Supreme Court of South Dakota,
the federal district court cautioned
against " drawing the line of willful,
wanton or reckless conduct too near
to that constituting negligent conduct
risks. " Accordingly, in the opinion of
the court, it was important to clearly
distinguish ordinary negligence
from gross negligence to avoid
" impossible confusion, " which could
result in the " eventual disregard of
the legislative intent to give relief
from liability for negligence " under
the state recreational use statute.
The federal district court further
noted: " Whether one acts willfully,
wantonly,
or
recklessly
is,
like
negligence, normally a jury question "
to be resolved at trial, as opposed
to being effectively dismissed on a
motion for summary judgment.
Recreational Use Immunity
In this particular instance, the
federal
district
court
noted,
" Storm's first cause of action is for
negligence. " As described above,
under South Dakota law, the court
acknowledged " cities are immune
from liability for negligent conduct
concerning public land used for
recreational purposes. " SDCL §
20-9-20, 21. As a result, the federal
district court held " the City is
entitled to summary judgment on
Storm's negligence claim. "
While Storm did not contest
summary judgment on his negligence
claim, he did argue that " the
City was grossly negligent through
willful and wanton misconduct in
its management of the Hill. " In so
doing, Storm claimed " a general
dispute of material fact " regarding
the existence of gross negligence,
which made summary judgment in
favor of the City improper.
While a South Dakota city cannot
be liable for negligence, the
federal district court agreed the city
could be held liable if " it was grossly
negligent, that is, was engaged in
willful and wanton misconduct. "
SDCL § 20-9-22.
On the issue of gross negligence,
the court agreed that a factual dispute
existed between Storm and
the city as to " whether the City
had closed the south side of the
Hill before Storm's injury. " Storm
claimed the Hill was closed based
on the city manager's memo to
the city council, including the city
manager's statements at the parks
and recreation advisory board
meeting in the fall of 2015, as well
as the testimony of several city
employees. Accordingly, Storm argued
" the entire Hill, including the
south side, had been closed to sledding
before his injury because the
City was aware of injuries associated
with sledding down the Hill. "
Under
these
circumstances,
Storm alleged " the City was grossly
negligent for failing to post signs
that the south side of the Hill was
closed to sledding or was dangerous. "
Moreover, Storm maintained
" he would not have gone sledding
and been injured " if " signs [had]
30 Parks & Recreation | A UGUS T 2 0 22 | PARK S ANDRECRE AT ION . OR G
Deliberate Intentional
Wrong
As cited by the federal district court,
the Supreme Court of South Dakota
had recently indicated the standard
for gross negligence under SDCL §
20-9-22 must " partake to some apbeen
installed on the south side
of the Hill. " In addition, Storm
contended
" there was
sufficient
evidence that the City acted with
a reckless state of mind because it
had received reports of injuries sustained
from sledding down the Hill
over the years and failed to keep official
records of these injuries. "
Initially, in responding to the original
complaint in Storm's lawsuit, the
City had conceded that " the south
side of the Hill had been closed. "
However, relying on testimony
from the city managers and the director
of parks and recreation, as
well as " public announcements that
only the east side of the Hill had
been closed, " the City subsequently
claimed, " the south side of the Hill
was never closed. " Moreover, in response
to " evidence of injuries arising
from the steep east side, " the City
argued that it had not acted in a reckless
state of mind. On the contrary,
the City claimed it had expressed " a
concern for the safety of others " and
had attempted to address a known
risk by having " the bales installed on
the east side as a safety measure. "
The City also argued that it was
" not grossly negligent because the
drainage ditch did not pose a probable
and easily perceptible risk of
death or serious physical harm. " In
so doing, the City pointed to " the
absence of any evidence that the
drainage ditch caused any injuries,
apart from Storm's injury, since it
was built over [30] years ago. "
August 2022 - Parks & Recreation

Table of Contents for the Digital Edition of August 2022 - Parks & Recreation
