July 2016 - Parks & Recreation - 28

L AW R E V I E W

(1) Extend any assurance that the premises are safe for any purpose; (2) Confer
upon that person the legal status of an
invitee or licensee to whom a duty of care
is owed; nor (3) Assume responsibility for
or incur liability for any injury to any
person or property caused by an act of
omission of that person...
Nothing in this chapter limits in any
way any liability which, but for this
chapter otherwise exists: (1) For the willful or malicious failure to guard or warn
against a dangerous condition, use, structure or activity after discovering the user's
peril; or (2) For any injury suffered in
any case where the owner of land charges
the person or persons who enter or go on
the land for the recreational use thereof.
As noted by the state supreme court,
a 1996 amendment to the Rhode Island
RUS clearly indicated the state legislature " intended to include the state and
municipalities among owners entitled to
immunity under the statute. " That being
said, the state supreme court voiced its
disapproval of extending the RUS to include governmental immunity.
We have on a number of occasions cast a
disapproving eye on this expansion of immunity, saying, " the state and its municipalities
are presumptively better able to bear the burden of damages " than an injured plaintiff,
and that " the statutory scheme does nothing
to motivate governmental landowners to
make their properties safe. " Nonetheless, we
have also been consistent in saying that this
court is not a legislative body; we are bound
to apply the statute in light of both its language and our jurisprudence.
Public Recreational Use?
On appeal, Carlson argued that she " was
not the type of user the statute contemplates " because " her use of Tuckertown
Field was not the type of use the RUS was
meant to cover. " The state supreme court
disagreed. According to the court, " the nature and scope of the activities occurring
26 Parks & Recreation

on the land " would determine whether the
RUS applied in a particular situation. Specifically, for the RUS to apply, the premises
must be open and available to the public
for recreational purposes and activities.
In this particular instance, the state supreme court found the area where Carlson was injured was in an area " away
from the field of play " where people
were " around the whole of the baseball
field. " Since " the general public was free
to access [this area] for recreational use, "
the state supreme court held the RUS
was indeed applicable to Carlson's claim.
Willful Malicious Misconduct?
On appeal, Carlson also contended the
RUS did not apply to her case under the
willful or malicious conduct exception
to RUS statutory immunity because the
town had failed to guard against the likelihood of serious injuries. The state supreme court disagreed.
According to the court, there was " no
such strong likelihood of injury " known
to the town. While witness testimony indicated that similar holes were a " repetitive
problem, " Murphy testified that " she and
her department had received no notice
of the hole. " While acknowledging the
possibility of the type of hole that caused
Carlson's injury, Murphy had doubted
that it was a " common problem. "
In the opinion of the court, " such evidence falls woefully short of establishing
the existence of sufficient facts to show
that the town knew of the particular hole
that injured plaintiff or of similar persons
injured by similar defects in the park. " Specifically, the state supreme court found the
facts in this particular case fell " far short "
of willful or malicious conduct, which
would require the town to be " saturated
with the knowledge that some feature of
its land presents a clear and present danger to completely innocent users. " As a result, the state supreme court found the trial
court had correctly concluded there was

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" no evidence here that the town was aware
of this particular hole, " and the town did
not know Carlson " was facing that peril. "
RUS Fee Exception?
Carlson also contended that the fee exception made RUS immunity inapplicable to
her case because either: (1) she paid a fee
to the league on her son's behalf so that
he could participate, or (2) she paid taxes to the town, which uses a part of its
budget to maintain Tuckertown Park. As
cited by the court, the fee exception in the
RUS provided that no limitation of liability existed " for any injury suffered in
any case where the owner of land charges
the person or persons who enter or go on
the land for the recreational use thereof. "
Further, the court noted that the RUS defined a " charge " as " the admission price
or fee asked in return for invitation or permission to enter or go upon the land. "
Citing precedent from earlier decisions, to qualify as a " charge " under the
RUS fee exception, the state supreme
court found " the fee must be imposed for
recreational use of the land. " In this particular instance, the court found Carlson
was not subject to a " charge " for recreational use of Tuckertown Park.
When she was deposed, Ms. Carlson
agreed that the game she went to see was
open to the public and that it was not
necessary to buy a ticket to get into the
park to watch the game. The fee plaintiff
paid to the league had no effect on her
right to use the park or view the game;
accordingly, such a fee is not a charge to
use the land as the statute contemplates.
Moreover, the state supreme court found
any taxes Carlson may have paid to the
town " did not affect whether she could use
the park for recreation, and therefore the
taxes were not charges or fees to use the
land. " Further, the court noted that Carlson
" was not required to be a resident of South
Kingstown to enter Tuckertown Park. "
In the opinion of the state supreme

July 2016 - Parks & Recreation

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