January 2018 - Parks & Recreation - 31

tion, which was not apparent to persons
using the property with due care. " In
other words, liability would be based on
" the inability of any user to see or appreciate the danger " without regard as to
whether the property was " used by careless or careful persons. "
Applying these principles to this situation, the appeals court found " the debris
in the ravine, including partially hidden,
freshly cut wood left by County personnel,
did not create a substantial risk of injury
when the park was used with due care. " On
the contrary, the appeals court determined
Casteen had not been " using the park with
due care, " and his own activity was hazardous as a matter of law; i.e., " swinging
from a rope at least 10 feet off the ground. "
In reaching this conclusion, the appeals court found Casteen had presented
" no evidence showing the debris in the
ravine posed a substantial risk of danger to any member of the general public
using the park with due care. " The appeals court, therefore, rejected Casteen's
contention that " the debris posed an
additional dangerous condition that the
County had a duty to guard against or
warn of. " According to the court: " Landing on the ground or something located
on the ground that could cause injury is
reasonably assumed as an inherent risk
of tree rope swinging, " including landing
on tree debris.
[A]nyone looking into the ravine could
see it was cluttered with tree debris. This
debris could hide rocks, larger fallen
branches or tree cuttings left by the County's maintenance personnel. Should a
tree rope swing break, the danger posed
to the user of the swing by the ground
itself or any type of debris on the ground
or in the ravine, natural or manmade,
was obvious.
On appeal, Casteen had claimed that he
was not engaged in an immune " hazardous recreational activity because he did not
consider tree rope swinging to be a danger-

ous activity that created a substantial risk
of injury to himself. " The appeals court rejected this argument. In the opinion of the
appeals court, Casteen's " subjective belief
regarding the risk of injury " was " irrelevant " because " the statute refers to the reasonable assumption of the public generally
(i.e., what a reasonable participant would
assume to be inherent in the activity). "

abandoned recreational equipment. " In
this particular instance, had the county
removed the tree rope swing, the court
further acknowledged " someone could
have easily installed another one. "
As a result, the appeals court held public entities " do not have a duty to maintain or remove all items on public lands
that could potentially pose hazards to

According to the court: " Landing on the ground or
something located on the ground that could cause injury
is reasonably assumed as an inherent risk of tree rope
swinging, " including landing on tree debris.
By using a tree rope swing, Casteen
reasonably assumed that an inherent
part of the activity included the possibility that the rope or branch might break
and he could be injured falling to the
ground or into the debris filled ravine.
Moreover, according to the court,
Casteen's own " custom and practice of
testing the rope and branch before using
the rope swing " belied his subjective belief and assertion that his activity was
neither dangerous nor hazardous.
On appeal, Casteen had further alleged
the county had notice of the existence
of the tree rope swing and " negligently
failed to maintain the rope swing in good
repair or remove it. " The appeals court
rejected this argument.
As characterized by the appeals court,
Casteen was " seeking to impose a duty
on public entities to bear the cost of continually policing potentially large expanses of public lands for recreational equipment left by third parties. " In contrast
to the high cost of constantly policing
public land to remove rope swings, the
court noted " it costs users of public land,
such as Casteen, nothing to simply avoid

individuals not exercising due care, " including rope swings.
[A]s a matter of law, individuals engaging in hazardous recreational activities utilizing recreational equipment
abandoned by unknown third parties on
public property [such as rope swings] are
not exercising due care.
[T]here is a limit as to how far society
should go by way of direct governmental
regulation...in order to protect individuals from their own stupidity, carelessness,
daring or self-destructive impulses.
Having found the county was immune
for liability for injuries sustained in a hazardous recreational activity, the appeals
court ordered the trial court to enter summary judgment in favor of the county.
See also: " Rope Swing Presents Obvious
Risk of Fall, " November 1994, Parks &
Recreation http://cehdclass.gmu.edu/jkozlows/lawarts/11NOV94.pdf.
James C. Kozlowski, J.D., Ph.D., is an Attorney
and Associate Professor in the School of
Recreation, Health and Tourism at George Mason
University (jkozlows@gmu.edu). Webpage with
link to law review articles archive (1982 to
present): http://mason.gmu.edu/~jkozlows.

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