March 2012 - Parks & Recreation - 35

the RUS for " willful or malicious conduct "
would determine whether or not the City
of Newport was potentially liable under
the circumstances of this particular case.
In so doing, under the circumstances of
this case, the state supreme court found
that the City had effectively discovered
the " user's peril " based upon the " dangers surrounding the Cliff Walk, " specifically " tragedies such as this have
occurred on multiple occasions. "
It is beyond dispute that for many
years, the city has had actual notice of
the dangerous instability of the ground
underneath the Cliff Walk and its eroding edge... The alleged facts in this
case bear a haunting similarity to the
plight of Michael Cain, who died in
1991 from injuries that he suffered during a visit to the Cliff Walk. The record
in that case established that when Cain
stepped from the paved area onto a
" well-worn spot * * * that appear[ed]
to be a perfectly natural area for a
stroller to stop * * * and look[ed] out
over the Atlantic Ocean, " he fell to his
death, " after the ground beneath his
feet gave way. " See: Cain v. Johnson,
755 A.2d 156 (R.I. 2000)
Nine years later, almost to the day,
plaintiffs allege that Simcha stepped off
the Cliff Walk's pavement, onto what
appeared to his untrained eye to be a
well-worn, grassy path when, as he
contends, the " ground gave way " beneath his feet and he plunged to the
rocks below.
Indeed, the record before us is replete with evidence demonstrating that
long before the Cain tragedy, the city
knew that the forces of natural erosion
were taking a toll on the Cliff Walk. In
1983, and again in 1987, after Brian Putney, a Salve Regina student, fell to his
death from the Cliff Walk...

Accordingly, in the opinion of the court,
" the evidence produced in this case
demonstrates that the city had actual or
constructive knowledge of the perilous
circumstances, and, having been afforded a reasonable amount of time to eliminate the dangerous condition, failed to do
so. " As a result, the court found the City's
failure to address a known dangerous

condition put " the members of the public
whom the city invites to visit the Cliff Walk
in a position of peril. "
Given the " Cliff Walk's instability, " the
state supreme court, therefore, found a
jury could reasonably conclude that " the
city voluntarily and intentionally failed to
guard against the dangerous condition,
knowing that there existed a strong likelihood that a visitor to the Cliff Walk would
suffer serious injury or death. " As a result, under the circumstances of this case,
the state supreme court held that " the city
had an affi rmative duty to take reasonable steps to warn and shield unsuspecting visitors, such as the Bermans, against
these known and grave dangers in some
reasonable manner. "
In so doing, the state supreme court
emphasized that " it is the number of serious injuries flowing from a known risk
that brings us to this conclusion today. "
According to the court, " we cannot conclude that when the Legislature extended
the protection of the RUS to the state and
its municipalities, it intended to relieve the
city from any responsibility whatsoever to
the many tourists who visit the Cliff Walk. "

safety repairs to publicly owned and taxpayer-financed recreational facilities, or to
warn the unsuspecting and innocent
members of the public of known dangerous conditions.

As a result, the state supreme court held
" the defendant City of Newport may not invoke the limited protections of the RUS because the city had a duty to warn or guard
against the Cliff Walk's latent dangerous condition. " The state supreme court,
therefore, vacated the trial court's summary judgment in favor of the defendant City
and remanded (i.e., sent back) the case for
trial to consider " whether the city is liable
in tort, " (i.e., personal injury liability).
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 in Manassas,
Virginia. Email: jkozlows@gmu.edu,
webpage with link to Law Review articles
archive (1982 to present): http://mason.
gmu.edu/~jkozlows.

We recognize that for purposes of
tort liability under the RUS, a visitor to
the Cliff Walk is accorded the status of a
trespasser to whom no duty of care is
owed, save to refrain from the conduct
set forth in § 32-6-5(a)(1) [i.e., willful or
malicious conduct]. But we are equally
cognizant that if we were to apply the
language of § 32-6-5(a)(1) as argued by
the city, the throngs of visitors, who, although accorded the status of
trespassers, are nonetheless innocent
tourists, will continue to face grave danger based on an interpretation of the
RUS that is not only absurd, but unjust.
We are not persuaded that the Legislature intended the RUS to serve as an
invitation to ignore known hazards
while profiting from this major tourist
attraction where such danger is present. We simply decline to attribute such
intent to the Legislature...
Were we to interpret the statute in the
manner that the city suggests, our holding
would serve as a disincentive to the state
and its subdivisions to make necessary

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March 2012 - Parks & Recreation

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