The recreational use statute in Florida is one echoed in many other states. With few exception, §375.251 holds that a property owner who provides the public with park area or other land for outdoor recreational purposes doesn’t owe a duty of care to keep that land safe for entry or use or to give warning of potentially unsafe conditions. That means generally, even private property owners aren’t liable for personal injuries when they extend use of their land free for recreational purposes.
There is often one big exception: If a charge is made or usually made for entering the park or a certain area or if there is any commercial or other activity that profits from patronage of the general public on the park land, then liability may become an issue.
This was reportedly the situation for an alleged personal injury at a park in Arizona. Here, the Arizona Supreme Court reversed an earlier summary judgment in a personal injury lawsuit favoring a defendant company with rights to an area of a public park where a patron fell and was injured.
According to court records, the agreement the company had with the park went back 25 years, with so called “Picnic Island” and a nearby pinata area patrolled, inspected, prepared, groomed and maintained by the company. The company never maintained exclusive rights to the area, to which the public otherwise had access.
Plaintiff had purchased a $300 package from defendant to host her daughter’s birthday party, which included all-day rides within that area, plus a pavilion reservation. Customers were also allowed to bring a pinata if they broke it outside the fenced in area, at a tree outfitted specifically for this purpose. An employee from the company specifically raised and lowered the pinata for partygoers trying to break it.
While walking through the area where the pinata was set up, plaintiff fell in a sprinkler-head divot that was covered by grass, injuring her arm and breaking her ankle.
Plaintiff sued defendant company, alleging premises liability. Defendant asserted recreational immunity, noting that plaintiff was a recreational user of the property and that the company was immune as a “manager” of the site under the statute.
The trial court granted defendant’s motion for summary judgment and the appellate court affirmed, but the state supreme court reversed. Although the city is entitled to immunity under the statute, the private company is not, the court held.
The company had no authority to open or close the area for recreational use purposes. It’s true that it patrolled, maintained, inspected, prepared and groomed the area, but the relationship with the city didn’t confer managerial status to the company that would entitle it to the same immunity the city enjoys under the recreational use statute. It merely maintains the pinata area and pays the city a fee. Thus, the company is an independent contractor (as opposed to a licensee or lessee). Plus, the company collects a payment for its services; it’s not opening this section of land (which it doesn’t have authority to do anyway) for free to the public.
The bottom line for park-goers in Florida is that despite the recreational use statute, there may be situations in which you are entitled to collect personal injury damages from areas that are otherwise free and open to the public for recreational purposes.
Call Fort Lauderdale Injury Attorney Richard Ansara at (954) 761-4011. Serving Broward, Miami-Dade and Palm Beach counties.
Normandin v. Encanto Adventures, LLC, May 17, 2019, Arizona Supreme Court
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