February 2015 - Parks & Recreation - 32

L AW R E V I E W

the wheel apparatus or of any accidents which involved that apparatus. "
According to the court, " a municipality has a duty to maintain its parks
and playground facilities in a reasonably safe condition. " That being
said, the court acknowledged that " a
municipality is not an insurer of the
safety of those who use its facilities. "
On the contrary, the court noted the
only legal duty of a municipality is
" to exercise ordinary care in the supervision, construction and maintenance of those facilities. "
In this particular instance, the court
found the town had " established that
the playground was in a reasonably
safe condition " at the time of the accident. As a result, the court held that
the town had not breached any legal
duty owed to Sebastian under the circumstances of this case. In response to
plaintiff 's allegation that there were no
age-appropriateness signs warning the
apparatus would be inappropriate for
young children, the court found there
was " no duty to warn against a condition which is readily observable by the
reasonable use of one's senses. "
Moreover, in this particular instance, the court noted that Sebastian's mother was present at the
playground and watching Sebastian.
Under the circumstances, the court
found it was " readily observable " to
Sebastian's mother that " there was
an inherent risk posed by use of the
wheel apparatus, which is approximately 64 inches above the ground. "
The court also found any " alleged
violations of guidelines promulgated
by the ASTM (International) and the
(Consumer Products Safety Commission) CPSC " were insufficient to
establish negligence liability because
these guidelines were " non-mandatory and not meant to be the exclusive standards for playground safety. "
30	 Parks & Recreation

Further, in this particular instance,
the court found plaintiff had failed
to establish that any alleged violation
of these playground safety guidelines
caused the accident.
As a result, the court granted summary judgment in favor of the town. In
so doing, the court found the alleged
" lack of age-appropriateness signs "
was not a defective condition providing
a basis for negligence liability.

According to the court,
" a municipality has a
duty to maintain its
parks and playground
facilities in a reasonably
safe condition. "
Summary Judgment Reversed
In the case of Gatlin v. City of Miles
City, 2012 MT 302; 367 Mont. 414;
291 P.3d 1129; 2012 Mont. LEXIS
370, the Montana Supreme Court
reviewed a summary judgment in favor of the city effectively dismissing
plaintiff 's lawsuit. In this particular
case, Tiffany Gatlin, age 8, fell from
a playground slide and sustained a
severe head injury. At the time of the
accident in July 2002, Gatlin alleged
that the defendant City of Miles City
had failed to " maintain a safe depth
of impact-absorbing material " in the
area of the slide. The city used bark
chips. According to Gatlin, the 1997
installation instructions for the slide
required a " protective fall zone " below the slide, which included " 12
inches of impact-absorbing material
under the slide, in compliance with

| F E B R UA R Y 2 0 1 5 | W W W. N R PA . O R G

standards set by the Consumer Product Safety Commission (CSPC). "
In 2001, the city had undertaken
a review of its park system, focusing on playground maintenance and
safety. A review committee reported
to the city council that surface protection for playground equipment was
important and that the goal was " to
prevent serious injury and death. " A
risk specialist with the city's insurer
recommended establishing adequate
surfacing and " fall zones " under
playground equipment, following
guidelines developed by the CSPC.
The city's park review committee
recommended adoption of a policy to
install fall areas around all playground
equipment, and that those areas be
raked daily in periods of peak use. In
January 2002, the city council adopted
a resolution outlining " current safety
standards " for the city's parks.
The trial court granted summary
judgment in favor of the city. Gatlin
appealed to the state supreme court.
Summary judgment would only be
appropriate if the city could demonstrate that it was " entitled to judgment as a matter of law. " In other
words, the city had to show that Gatlin failed to allege facts upon which
to base a claim for negligence liability. If reasonable minds could differ
on whether these alleged facts could
possibly provide a legal basis for liability, further trial proceedings would
be necessary and a summary judgment dismissing Gatlin's negligence
claims would not be granted.
Willful and Wanton Misconduct
As noted by the state supreme court,
Gatlin and the city both agreed that
the Montana " recreational use statute (RUS) " applied to this case. The
RUS provided that an individual using property owned by a public entity



February 2015 - Parks & Recreation

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