A Montana state court judge has granted a defendant property owner’s motion for a summary judgment in a case in which the plaintiff was playing sandlot football with a group of children and injured himself when he ran on to the defendant’s property.
Central to the judge’s ruling was his finding that the plaintiff, who was using the defendants’ property for a recreational use, did not pay compensation for the use of the property, nor was there an allegation that the defendants’ actions were in any way willful or wanton.
The incident occurred on May 26, 2007. A nine-year-old threw a long pass to the plaintiff, who left the property where the game was located and ran on to the property owned by the defendant to catch the ball. At the time, wrote the court, the plaintiff was looking back toward the football and, after he entered the defendants’ property, he ran into a wellhead located on the defendant’s property. In his complaint, the plaintiff suggested that the defendants had a duty to keep their property safe and to warn of any hidden or lurking dangers. He further alleged that the defendants breached this duty because they permitted weeds to obscure the wellhead.
In its analysis, the court wrote that “ person who uses property, including property owned or leased by a public entity, for recreational purposes, with or without permission, does so without any assurance from the landowner that the property is safe for any purpose if the person does not give a valuable consideration to the landowner in exchange for the recreational use of the property. The landowner owes the person no duty of care with respect to the condition of the property, except that the landowner is liable to the person for any injury to person or property for an act or omission that constitutes willful or wanton misconduct.”
The court went on to define “recreational purposes” as used in the statute, which would include “hunting, fishing, swimming, boating, waterskiing, camping, picnicking, pleasure driving, biking, winter sports, hiking, touring or viewing cultural and historical sites and monuments, spelunking, or other pleasure expeditions. The term includes the private, noncommercial flying of aircraft in relation to private land.”
The plaintiff suggested that his playing football “is not a recreational purpose, but was an athletic endeavor that is somehow distinguished from the definition of recreation. This Court does not agree. The definition of recreational purposes is very broad and includes ‘other pleasure expeditions.’
Next, the plaintiff suggests that “he was not ‘using’ the property as the statute requires, because he accidentally entered the defendants’ property. Again, the court does not find this distinction mentioned in the statute. In a case such as this, the court finds the statute to be clear. When interpreting statutes, courts are not to insert what has been omitted or omit what has been inserted. The court is to pursue the intent of the legislature and determine the plain meaning of the statute. Where the language is unambiguous, the statute speaks for itself, and other means of interpretation will not be required. Saari v. Winter Sports, Inc., 2003 MT 31, P22, 314 Mont. 212, 64 P.3d 1038.”
The court specifically highlighted its opinion that the statute “is designed to provide that a landowner owes no duty of care with respect to a condition of its property to a gratuitous recreational visitor. Jobe v. City of Polson, 2004 MT 183, P25, 322 Mont. 157, 94 P.3d 743. In Jobe, the claimant fell through a damaged plank on a city-owned dock where he was fishing. The supreme court held that Section 70-16-302, MCA, bars negligence claims absent an allegation of willful or wanton misconduct.
“Other recent cases interpreting Section 70-16-302(1), MCA, are in accord. Saari involved the death of an individual. In that case, a church youth group went sledding at the Big Mountain Ski Resort after the resort had closed for the day. One of the sledders died as the result of an accident. Suit was brought, but the district court granted summary judgment to the ski resort on the basis of Section 70-16-302, MCA. The supreme court upheld the district court’s decision. Saari, P27.
“Weinert v. City of Great Falls, 2004 MT 168, 322 Mont. 38, 97 P.3d 1079, involved a sledding hill where the City of Great Falls had installed a safety net at the bottom of the hill. An individual was injured on the hill despite the city’s efforts. Again, the trial court granted summary judgment based on Section 70-16-302, MCA, which was affirmed by the supreme court. Id., P23.”
Joe Kapphan v. Tom Vincent and Danielle Vincent; 1st Jud. Dist. Ct. Montana; Cause No. BDV-2008-79, 2009 Mont. Dist. LEXIS 17; 2/11/09
