March 2012 - Parks & Recreation - 31

natural conditions are per se [i.e., in and
of themselves] open and obvious or that
a natural condition may never serve as
the basis for a premises defect claim. "
Instead, the appeals court held that " the
recreational use statute permits premises defect claims based on natural conditions as long as the condition is not open
and obvious and the plaintiff furnishes evidence of the defendant's alleged gross
negligence. " As a result, the appeals court
found the trial court should not have dismissed the case because Kirwan's allegations and evidence had raised an issue as
to the City's gross negligence. The state
supreme court granted the City's petition
to review the decision of the appeals court.

Obvious Natural Conditions
In general, the state supreme court noted
that a landowner has no legal duty to warn
or protect recreational users from obvious defects or conditions on the premises. On the contrary, the court found a

landowner " may assume that the recreational user needs no warning to appreciate the dangers of natural conditions " :
Nature is full of risks and it is certainly
foreseeable that human interaction
with nature may lead to injuries and
possibly even death. Our state parks
and lands are covered by numerous
potentially dangerous natural conditions: cliffs; caves; waterfalls; swamps
and other wetlands; mountains and
canyons; surf; and various animals and
creatures.
Landowners likely know of the types
of animals and natural formations on
their property, and will no doubt, as a
general rule, foresee the risks which
will accompany human interaction with
these natural conditions. Reasonable
recreational users who choose to visit a
property for recreational purposes will
also have, or in the very least should
have, awareness of the inherent risks
involved in interacting with nature.

Accordingly, in the opinion of the state
supreme court, " a recreational user
needs no warning to appreciate the dangers of natural conditions, such as a sheer
cliff, a rushing river, or even a concealed
rattlesnake. " Similarly, in this particular
instance, the court found McGehee as
well as the City could both " reasonably
expect a cliff to impose a risk of harm " :
The loose rocks and cracks at the cliff's
edge could have alerted a recreational
user of the possibility of crumbling
rocks. Moreover, it would be obvious to
reasonable recreational users that
many cliffs have the potential to crumble. The risk of harm was therefore
foreseeable not just to the City but to
McGehee as well...
Indeed, the City had erected a wall
and posted a sign warning visitors to
stay away from the cliff's edge. The cliff
also consisted of loose rocks and
cracks that would have been visible to
any patron who stood at its

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March 2012 - Parks & Recreation

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