September 2010 - Parks & Recreation - 40

LAW REVIEW continued from page 37

conduct " of the public entity " when the
injury involves realty (and appurtenances thereto) used for recreational purposes, " including a public playground and
playground equipment.
In this particular instance, the court
found that plaintiff was seeking " redress
for injuries allegedly caused by the
condition of the slide found at the playground, and the City's failure to ameliorate or rectify that condition or otherwise
warn others of same. "
As characterized by the court, the
Rules' complaint focused on the City
of Lubbock's alleged " failure to repair
or maintain the playground equipment
or warn about its purportedly hazardous condition. " In so doing, the court
held that " the Ru les triggered application of the Recreational Use Act
which bestowed upon them the status
of trespassers. TEX. CI V. PR ACT. &
REM. CODE ANN. § 75.002(c)(2). " As

defined as including hunting, fishing,
swimming, boating, camping, picnicking, hiking, pleasure driving, nature
study, birdwatching, cave exploration,
waterskiing, water sports, and any other
activity associated with enjoying nature
or the outdoors. "
Applying this statutory definition to
the facts of the case, the court found
" the use of playground equipment, i.e.
a swing, at a city park was considered
to be within the statutory definition of
recreation. "
That journeying to a park to enjoy its
facilities and playground equipment is
akin to " picnicking " (albeit without the
food) and within the category of an
" activity associated with enjoying nature or the outdoors " cannot
reasonably be disputed.

As a result, under the state tort claims
act, the court found plaintiff must allege
wilful, wanton, or grossly negligent

a result, in making such an allegation
which afforded them the legal status
of trespassers under the state recreational use statute, the court found that
the Rules, as recreational users, " were
owed no duty by the City with regard to
the condition of the playground and its
appurtenances. " Accordingly, in order
to avoid having their claims dismissed,
the court found plaintiff's would have
to amend their complaint to allege and
ultimately establish egregious misconduct on the part of the city which might
reasonably be considered wilful, wanton, or grossly negligent.

James C. Kozlowski, J.D., Ph.D. is an
associate professor in the School of
Recreation, Health, and Tourism at
George Mason University in Manassas,
Virginia. E Mail: jkozlows@gmu.edu
Webpage: http://mason.gmu.
edu/~jkozlows

Themed Playgrounds- Our Designs or Your Concepts
SM

TimberForm & PipeLine
®

www.timberform.com

Circle 26 on product information form on PAGE 127

38 Parks & Recreation

SEPTEMBER 2010

www . N R P A . O R G

Our designs or your concepts formed
from steel, timber or recycled plastic.
For more ideas visit our web site or
contact us at: 1-800/547-1940 ext. 535.
e-mail: play@timberform.com

September 2010 - Parks & Recreation

Table of Contents for the Digital Edition of September 2010 - Parks & Recreation