January 2018 - Parks & Recreation - 27

least 1990. Similarly, the owner of the
property on the north side of the boat
launch, testified that he became aware
of the rope swing in 2007, after he purchased his house.
All three of the neighboring property
owners confirmed that the rope swing
and rope swing area was a popular summer recreational spot. One property
owner testified that he had observed kids
swinging on the rope and jumping into
the river " all summer long. " The claimant
himself had testified at trial that " there
was always a good amount of people on

Khachadourian took the rope and
climbed onto a platform about 16 feet
above the ground. He tugged on the
rope to make it taut and jumped off, intending to swing out over the water and
let go. However, as soon as he jumped,
the rope broke and Khachadourian
fell to the ground on the shore, injuring himself. The rope broke at a point
about 6-12 inches down from where it
was tied onto the tree limb. There were
no signs in the boat launch area or rope
swing area warning against or prohibiting rope swinging.

court was " whether the State had constructive notice of the dangerous condition. " The claims court defined " constructive notice " as follows:
To constitute constructive notice, a defect must be visible and apparent, and it
must exist for a sufficient length of time
prior to the accident to permit defendant's employees to discover and remedy
it. Additionally, constructive notice may
be based on the state's failure to reasonably inspect its property, provided such
reasonable inspection would have revealed the dangerous condition.

Visible Discoverable Danger
As noted by the state claims court, the
state, as landowner, had a legal duty " to
maintain its property in a reasonably safe
condition in view of all the circumstances, including the likelihood of injury
to others, the seriousness of the injury,
and the burden of avoiding the risk. "
On the other hand, the claims court acknowledged the state was " not an insurer
against every injury that might occur on
its property. " Accordingly, negligence liability could not be " presumed from the
mere happening of an accident. "
Aside from the accident itself, to establish the state's negligence liability
for claimant's injuries, there had to be
" proof that the State created a dangerous condition or had actual or constructive notice of a dangerous condition. "
Moreover, they had to prove that the
state " failed to properly act to correct
the problem or warn of the danger and
that such failure was a proximate cause
of the claimant's injuries. "
In this case, the claims court noted
there was " no dispute that the particular rope swing at issue in this case was a
dangerous condition. " The claims court
found no evidence that the state had created the dangerous condition or had actual notice of it.
Therefore, the issue before the claims

In the state claims court, Khachadourian alleged the
state was negligent in " failing to prevent the use of the
rope swing or warn of its dangers, failing to monitor or
supervise the use of the rope swing and failing to ensure
the safety of the rope swing. "
In this instance, the claims court found
the state had constructive notice of the
rope swing. In the opinion of the claims
court, the " credible evidence presented
at trial established unequivocally that the
rope swing and the platforms had been
present at the location for a significant
period of time prior to the accident. "
Claimant Khachadourian testified
that he had visited the rope swing area
" about a dozen times " between 2009 and
August 5, 2012, the date of the accident.
The claimant had also testified that the
platforms had been there since he started
visiting the site in 2009. While claimant
could not tell " how long the platforms
had been there, " he had testified that
" the pine tree was growing around the
wooden platform affixed to it. "
In addition, the owner of the property on the south side of the boat launch
had testified that the rope swing and
platforms had been there since at

the weekends " at the rope swing, located in " a pretty big area in the woods. "
As described by claimant: " There's a log
to sit down on. People were just hanging
out, really, enjoying the water. "
Other neighboring property owners
had similarly observed people accessing the swing from the river and from
a path from the parking lot. Moreover,
the claims court found the " path from
the parking lot through the woods to the
rope swing area had been there for a significant period of time and was visible
from the parking lot. "
Inspection Responsibility?
Given trial testimony that " the rope
swing was visible and apparent, " the
claims court considered whether " a reasonable inspection of the property would
have revealed the dangerous condition "
on this particular portion of state land.
Three state employees responsible for

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Parks & Recreation

January 2018 - Parks & Recreation

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