September 2010 - Parks & Recreation - 36

LAW REVIEW continued from page 33

egregious behavior which goes way beyond mere carelessness to reach a level of outrageous misconduct indicative
of a reckless and total disregard for the
physical well being of others.
Faced with the burden of alleging
and ultimately proving willful/wanton
misconduct or gross negligence under an applicable state statute, plaintiffs are much more likely to have their
claims dismissed prior to trial or, in the
event of a trial, having judgments entered for defendants. That being said, the

effectiveness of such statutory immunity
necessarily assumes that public agencies and/or their insurers will aggressively defend lawsuits at trial, and appeal
adverse judgments if appropriate, rather
than settle claims to avoid the costs and
uncertainty of going to trial.

Virginia
In Virginia, the liability of localities in
the operation of parks, recreational facilities, and playgrounds is limited to
gross negligence pursuant to Virginia

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34 Parks & Recreation

SEPTEMBER 2010

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Code section 15.2-1809 which provides
as follows:
No city or town which operates any
park, recreational facility or playground shall be liable in any civil
action or proceeding for damages resulting from any injury to the person
or from a loss of or damage to the
property of any person caused by any
act or omission constituting ordinary
negligence on the part of any officer
or agent of such city or town in the
maintenance or operation of any such
park, recreational facility or playground. Every such city or town shall,
however, be liable in damages for the
gross negligence of any of its officers
or agents in the maintenance or operation of any such park, recreational
facility or playground.
The immunity created by this section is hereby conferred upon counties
in addition to, and not limiting on, other immunity existing at common law
or by statute. Va. Code § 15.2-1809.

In the case of Sheppard v. Fairfax
County Park Authority, 51 Va. Cir. 152
(12/8/1999), plaintiff was injured when a
swing at Mt. Vernon Manor Park broke
while she was sitting on it. The defendant
park authority (FCPA) claimed immunity from claims of ordinary negligence
based on Va. Code § 15.2-1809.
FCPA contended that the limited immunity of Section 1809 applied to local
and regional park authorities, as well as
to the cities, towns, and counties specified in the statute. Sheppard responded
that Section 1809 applies only to the entities specified in the statute.
Although " the plain language of Section 1809 seemingly limits the liabilities
of only cities, towns, and counties in the
operation of any park, recreational facility, or playground, " the court found " the
General Assembly has expanded the
scope of this recreational immunity in
Va. Code § 29.1-509, " i.e., the state recreational use statute (RUS). The RUS defined the " Duty of care and liability for
damages of landowners to hunters, fishermen, sightseers " as follows:

September 2010 - Parks & Recreation

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