May 2014 - Parks & Recreation - 37

acle, which would have effectively
eliminated the alleged design defect
in naked swing chain, i.e., the finger
entrapment hazard.
In light of the " conflicting opinions
of the parties' experts regarding the
reasonableness of the swing's design, "
the court found this case presented
" classic credibility issues that are ordinarily a matter for the trier of fact
to resolve. " In other words, this type
of fact-specific claim would warrant
further trial proceedings, as opposed
to being resolved without a trial on a
motion for summary judgment.
Assumption of Risk
Miracle had also contended that Faherty should be barred from any recovery of damages for his injuries because
he had " assumed the risk of injury. " In
other words, by his mere participation,
Miracle and Birchwood claimed Faherty had assumed the obvious inherent risks associated by the activity that
produced his injury, in this case jumping from a moving playground swing.
As noted by the court, the assumption of risk defense doctrine is
" frequently applied, or sought to be
applied, to claims of injury arising
out of a plaintiff 's participation in
a sporting or entertainment event or
activity, whether amateur or professional. " That being said, the court
found the assumption of risk defense
for inherent and obvious dangers in
an activity does not apply to " strict
products liability. " Strict products liability, or liability without proof of
fault, could be imposed on the seller
for injuries sustained by the ultimate
user of a defectively designed product that proved to be unreasonably
dangerous for its intended use. As a
result, the court rejected Miracle's
motion for summary judgment based
on assumption of risk.

Landowner Liability
The court then considered the applicability of the assumption of risk
defense for Birchwood, as landowner
under the circumstances of this particular case. As noted by the court,
a landowner generally has a legal
duty to " exercise reasonable care in
maintaining its property in a safe
condition under all the circumstances. " According to the court, such

However, under the circumstances of this particular case, the court
found Miracle and Birchwood had
failed to submit pretrial evidence
that conclusively proved that " the
chain link swing which pinched
plaintiff 's fingers was not inherently
dangerous and was readily observable by the reasonable use of one's
senses. " On the contrary, Faherty's
pretrial evidence indicated the chain

The court found this case presented " classic
credibility issues that are ordinarily a matter for the
trier of fact to resolve. "
relevant circumstances include " the
likelihood of injury to others, the
seriousness of the potential injuries,
the burden of avoiding the risk, and
the foreseeability of a potential plaintiff 's presence on the property. "
Moreover, the court acknowledged
that there is generally " no duty to
warn against a condition which is
readily observable or an extraordinary
occurrence, which would not suggest itself to a reasonably careful and
prudent person as one which should
be guarded against. " Ordinarily, the
court noted " [t]he question of whether a condition is hidden or open and
obvious is generally for the finder of
fact to determine " in trial proceedings.
That being said, the court acknowledged that it could " determine that a
risk is open and obvious as a matter
of law where clear and undisputed
evidence compels such a conclusion. "
In such a case, the court could enter
a pretrial motion summary judgment
in favor of a defendant, effectively dismissing the landowner liability claim.

link posed inherently dangerous risk
of finger entrapment, which would
not be obvious. Moreover, the court
held the assumption of risk defense
would not apply to an inherently
dangerous product defect that was
not readily observable under the circumstances of this case.
As a result, the court denied Miracle's and Birchwood's motion for
summary judgment to effectively
dismiss Faherty's claims without trial. In the absence of any settlement,
Faherty's claims would proceed to
trial in which a jury would determine
whether the playground swing chain
constituted an inherently dangerous
product and unreasonably dangerous
condition on the premises at the time
of the injury.
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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May 2014 - Parks & Recreation

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