Day on Torts

Summary Judgment Based on Tennessee Recreational Use Statute Affirmed.

Where a minor child was injured while playing on a playground at a state park, and after the incident a park ranger admitted that the mulch under the playground was not thick enough but no prior notice of the mulch condition had been shown, plaintiff had not proven gross negligence to overcome the immunity afforded to the State under the Tennessee Recreational Use Statute. In Victory v. State, No. M2020-01610-COA-R3-CV (Tenn. Ct. App. Oct. 29, 2021), plaintiffs’ minor child had gone camping with her grandparents at a state park. While there, the child went with her grandmother to play on a playground, and the child fell off the playground, fracturing her arm. The grandparents took pictures of the area the day after the fall, and plaintiffs filed suit, alleging that the “injury was due to inadequate mulch or padding on the playground.”

Plaintiffs’ complaint asserted claims for negligence, gross negligence, and gross negligence per se. After discovery, the State filed a motion for summary judgment, which the Claims Commissioner granted on two grounds. First, the Claims Commissioner ruled that the claim was “barred by § 70-7-102(a) of Tennessee’s Recreational Use Statute, which protects landowners, including the State of Tennessee, from responsibility for injury to recreational visitors.” The Commissioner further found that the gross negligence exception to the Recreational Use Statute did not apply here. Second, the Commissioner ruled that “Plaintiffs failed to establish an essential element of their claim under § 9-8-307(a)(1)(C) of the Claims Commission Act, that the proper state official had been given prior notice of the playground’s condition.” On appeal, summary judgment for the State was affirmed.

Plaintiffs raised only one issue on appeal—“whether the State’s failure to maintain a playground could be considered gross negligence instead of ordinary negligence.” Plaintiffs admitted that “the Recreation[al] Use Statute would immunize the State as a landowner unless the exception for gross negligence applies.” To support their argument that there was a genuine issue of material fact regarding gross negligence, plaintiffs pointed out that rangers only did drive-by inspections of the playground, which were allegedly inadequate to keep the playground safe. Plaintiffs also cited a park ranger’s deposition wherein he “agreed that the photos [taken by the grandparents] showed a ‘hazardous’ and ‘dangerous’ condition,” and plaintiffs alleged that “the condition was particularly egregious given that the playground’s purpose is to provide a place for children to play.”

The Court pointed out, though, that “gross negligence in relation to Recreational Use Statute claims has only been found in the most egregious cases,” and it ruled that there was “no evidence in the record upon which a reasonable person would conclude that the State was grossly negligent with regard to the maintenance of the playground.” (internal citation omitted). The Court specifically noted that the park had no prior notice of the mulch condition and that the ranger’s deposition testimony, which occurred after the incident, was “insufficient to establish or infer the ‘utter disregard’ necessary to show gross negligence.” Summary judgment based on the Recreational Use State was accordingly affirmed.

In addition, the Claims Commissioner had granted summary judgment on two “separate and independent” grounds, yet plaintiff had only appealed one. “Tennessee law…provides that where a trial court provides more than one separate and independent ground for its judgment and a party fails to appeal one or more of the independent grounds, [the Court of Appeals] must affirm the judgment of the trial court on the ground that was not challenged.” (internal citation omitted). Because plaintiffs failed to appeal the ruling that they did not establish notice of the allegedly dangerous condition, summary judgment was also affirmed on that ground.

This case is a reminder of the huge role the Recreational Use Statute can play in a premises liability case against the State (as well as other defendants). The Recreational Use Statute may apply in a variety of situations, and overcoming the statute’s immunity by showing gross negligence can be difficult.

NOTE: This case was decided by the Court of Appeals seven weeks after oral argument.

This decision has been added to a Day on Torts: Leading Cases in Tennessee Tort Law, Chapter 89, Section 5 and Chapter 98, Section 8.

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