September 2018 - Parks & Recreation - 36

LAW REVIEW

The state Supreme Court found the
RUS applied to the city because the
park was " open to the public free of
charge and that Lukens was engaged
in the recreational activity of riding his
bicycle at the time he was injured. "
cient pretrial evidence existed to
support her claim for landowner
liability based on the RUS exception for " the willful or malicious
failure to guard or warn against
a dangerous condition. " Cancel
claimed the pretrial testimony of
the park director and the park superintendent were indicative of
willful or wanton misconduct.
The park director had testified
that " there is no regular schedule
for inspection of the roadways
within the park. " Moreover, the
park director had admitted that

Parks & Recreation

" the strip of road where the pothole was located was driven over
daily " by the park superintendent.
Further, Cancel claimed pretrial
photographic evidence of the pothole made it " clearly foreseeable
that any reasonable person would
recognize that a pothole of this
size should be remedied, repaired
or marked off so as to not cause a
danger to the public. "
The state Supreme Court found
the RUS applied to the city because
the park was " open to the public free
of charge and that Lukens was engaged in the recreational activity of
riding his bicycle at the time he was
injured. " Accordingly, the specific issue on appeal was whether the willful or wanton misconduct exception
in the RUS was applicable.
In addressing this issue, the state
Supreme Court had to determine
whether Cancel had produced suf-

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ficient pretrial evidence to indicate
" the city had any notice concerning the pothole. " In determining
whether the city had been put on
sufficient notice of a dangerous
condition, the court would also
consider the number of serious injuries flowing from a known risk.
While testimony indicated the
park director and the park superintendent " traveled in the area at
least several times per week on their
way to and from the park, " the state
Supreme Court found Cancel had
offered " no evidence, expert or otherwise, however, that demonstrates
that the pothole was, in fact, present at any of the times that the park
superintendent drove over the roadway or that the city had received any
complaints or other notice concerning the condition of the roadway. "
Moreover, the court found mere
allegations that the park director
and park superintendent must have
known of the pothole were insufficient to establish " the city's knowledge of a dangerous condition. "
Similarly, the court found no pretrial evidence had been produced to
" support an assertion that the city
willfully or maliciously failed to
guard or warn against the pothole. "
In particular, the court noted there
was " no evidence that the city had
actual knowledge of the pothole,
had received complaints regarding
the condition of the roadway, or had
notice of any past incidents resulting
from the condition of the roadway. "
As a result, the state Supreme
Court affirmed the summary judgment in favor of the city of Providence. (Compare: " Cliff Collapse
Accidents Test Recreational Use
Statutes, " Parks & Recreation, Mar.
2012, http://cehdclass.gmu.edu/
jkozlows/lawarts/03MAR12.pdf.)

September 2018 - Parks & Recreation

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