Day on Torts

Summary judgment based on GTLA and Recreational Use Statute affirmed.

Where defendant governmental entity did not own the park where plaintiff was injured, and plaintiff was attending a concert in the park when she fell, summary judgment based on both the GTLA and Recreational Use Statute was affirmed.

In Costner v. Maryville-Alcoa-Blount County Parks & Recreation Commission, No. E2021-00189-COA-R3-CV, 2022 WL 3092906 (Tenn. Ct. App. Aug. 3, 2022), plaintiff was attending a concert in a park when she stepped into a hole covered by grass clippings and broke her ankle. The park was owned by the City of Alcoa but controlled by the Maryville-Alcoa-Blount County Parks and Recreation Commission (the Commission).

Plaintiff initially filed a premises liability case against the City of Alcoa, but later filed an amended complaint naming Alcoa, the City of Maryville, Blount County, and the Commission as defendants. The trial court first granted summary judgment to Alcoa, Maryville and Blount County, finding that Alcoa did not control the park, and Maryville and Blount County neither owned nor controlled the park, both of which are required to remove immunity under the GTLA. The Commission later filed its own motion for summary judgment, arguing that it was immune from suit under the GTLA and Recreational Use Statute. The trial court agreed, granting the motion, and summary judgment was affirmed on appeal.

The first issue on appeal was whether Maryville, Alcoa and Blount County were proper parties to the appeal, with the Court ultimately ruling that they were not. None of the three were served with a notice of appeal, and they were not listed as appellees in the notice, instead being listed as former defendants. Further, “the only judgment for appeal listed in the notice [was] the trial court’s January 25, 2021 order, which does not apply to any of them.” Plaintiff argued that serving the notice of appeal on the Commission constituted service on Maryville because they shared a lawyer, but the Court rejected that argument. Plaintiff also argued that these three defendants were “partners” in a “joint venture” and that notice to one served as notice to all, but the Court pointed out that the statute plaintiff was attempting to rely on only applies to for profit ventures, and the Commission was not for profit and was instead formed under the Tennessee Interlocal Cooperation Act. Accordingly, the Court of Appeals ruled that Alcoa, Maryville, and Blount County were not proper parties to the appeal.

Next, the Court considered whether summary judgment in favor of the Commission was appropriate, ultimately finding that it was. There was no dispute that the Commission was a governmental entity, so the GTLA applied in this case. The GTLA provides that governmental entities are immune from suit except in certain enumerated instances. When a plaintiff brings a premises liability case that falls within the GTLA, she must show that “(1) the governmental entity owns and controls the location…alleged to have caused the injury; (2) a dangerous, defective, or, in the case of sidewalks, unsafe condition caused the injury; (3) the governmental entity had actual or constructive notice of the dangerous condition; and (4) the governmental entity breached its duty to eliminate the condition or its duty to warn of the condition.” (internal citation omitted). Here, the first issue was dispositive.

The undisputed facts of this case showed that Alcoa, not the Commission, owned the park. “[U]nless a plaintiff can establish this essential element—that the governmental entity owned and controlled the subject location or instrumentality, the existence of a dangerous or defective condition need not be addressed.” (internal citation and quotation omitted). Because plaintiff could not show that the Commission owned the park, summary judgment based on the GTLA was affirmed.

The Court next turned to whether summary judgment was appropriate under the Recreational Use Statutes. When considering whether the “recreational use defense” applies, courts use a two-pronged analysis: “(1) whether the activity alleged is a recreational activity as defined by the statute; and if so, (2) whether any of the statutory exceptions or limitations to the immunity defense are applicable.” (internal citation omitted).

While attending a concert is not specifically listed in Tenn. Code Ann. § 70-7-102 as a recreational activity, this list is “neither exclusive nor exhaustive, and activities similar to those explicitly enumerated in § 102 may also fall within the purview of the recreational use statute.” (internal citation and quotations omitted). After looking at the statute and Tennessee caselaw, the Court concluded that attending the concert fell within the recreational use statute, explaining:

We have no difficulty holding that attending a concert is both a recreational activity by its very nature and one that is comparable to the activities expressly enumerated in section 70-7-102. Specifically, we find that attending a concert at a park is similar to sightseeing, bird watching, and nature and historical studies and research. The primary purpose and common thread in all these activities is that they are leisure activities. One cannot realistically argue that attending a concert at a park, just like picnicking, is not similar to recreational activities enumerated in the statute.

(internal citations and quotations omitted).

While plaintiff did not argue in her brief that any statutory exceptions to the recreational use statute applied, the brief did allege that the failure to address the hole in the grass constituted gross negligence, so the Court addressed this argument in its opinion. The facts of this case showed that the park was mowed at least once per week, that the Commission checked for holes before each concert, and that holes were filled if they were found. Further, plaintiff offered no proof regarding how long the hole she fell into had been in existence, what caused the hole, or whether anyone had previously reported the hole to the Commission. The Court found that “the Commission could not warn [plaintiff] about a condition of which it did not have actual or constructive notice,” and therefore affirmed summary judgment based on the Recreational Use Statutes.

This opinion was released 6.5 months after oral arguments in this case.

Note:  Chapter 41, Sections 7 and 25 and Chapter 89, Section 5 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.

Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases.  The 500,000+ word book  (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law.  Click on the link to see the book’s Table of Contents.

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