By James Moss
For years, the Nevada Supreme Court had been judicially restricting the Nevada Recreational Use Statute, NRS 41.510. In a decision earlier this year, the high court re-examined the statute in light of the Nevada Legislature’s decision to amend the statute to broaden the scope of the real property protected by the statute and broadened the definition of what “recreational” activity constitutes under the statute.
Recreational use statutes were enacted to protect landowners who open their land to others for recreational purposes without charging a fee to those using their land. Think about a farmer who allows hunters to hunt game on his land. The land would not be available for any recreational purpose if the farmer where to get sued for any injury a hunter might suffer. A farmer with several hundred acres cannot constantly survey the land and warn people on his land of any physical or other anomaly of the land that might cause injury. If you want to hunt for free, you have to accept the risks.
These recreational use statutes have been broadened in most states to cover government municipalities and agencies so that city parks can be built and maintained without the city facing litigation. Eventually, coverage was also granted to federal land within most states.
However, each state recreational use statute is different. And, as is always the case, what is covered by one state can create liability in another.
In the aforementioned decision, the Nevada Supreme Court was reluctant to agree, constantly referring back to the good old days when they could deny the land owner protections afforded by the act by quoting old cases decided before the change in the statute. It creates an interesting legal read when the citations are to cases that have no value because the statute the cases were based on has changed, making the cases irrelevant and no longer binding precedent.
Factual Summary
The plaintiff assisted her daughter on a slide at the city park when she slipped on a poured-in-place surface with a 4-inch edge drop, which was created when the original slide was removed and the present slide installed. The plaintiff fell and fractured her leg in several places.
The plaintiff and her husband filed a complaint pleading negligence arising from premises liability and loss of consortium. The city denied liability arguing it was protected by the Nevada Recreational Use Statute. Eventually, after discovery had started, the city filed a motion for summary judgment relying on the statute. The trial court granted the city’s motion and dismissed the case.
The plaintiff argued a public park was not described under the statute as land intended to be protected and that assisting a child on a slide was not recreational. While the child was on the slide for recreation, the issue became: Could the mother’s assistance of the child have been recreational in nature as well?
According to the court, the new amendment eliminated any opportunity to get around the statute.
The first issue the Nevada Supreme Court reviewed was whether the land fell within the definition of the land to be protected in the statute. After first reviewing prior law where the land would not have been protected, the court accepted the broader definition of a piece of land under the statute. In what is possibly the broadest definition of the land to be protected in any state, the statute describes land protected by the statute as “an owner, lessee or occupant of premises” as well as “an owner of any estate or interest in any premises, or a lessee or an occupant of any premises.” Any estate, any interest in the premises including a lessee or occupant covers all possible owners or legal occupiers of the land. Thus, the court found, the City of Henderson’s Park fell within that definition and was protected under the statute.
The plaintiff’s argument that the land must be undeveloped to qualify for protection held no value at this point. Who would want to participate on a recreational basis on undeveloped land with a child? The reason a park would qualify is because it contains structures or playgrounds.
The next discussion by the court in this case centered around whether helping a child down a slide was a recreational activity. Sliding on a slide was obviously recreational for a child. But the child was not the plaintiff. The new statute included a list of activities that would be recreational, as many recreational use statutes do, and stated that this list was not exhaustive. Walking was on the list as well as just crossing over the land. The court examined walking from several different perspectives and found walking was simply walking and is a recreational activity. The court found assisting your child down a slide was also a recreational activity.
The plaintiff’s third argument was that the actions of the City in keeping a slide on an uneven surface “willfully or maliciously fail[ed] to guard against the dangerous condition.” The plaintiff presented no evidence that the actions of the City were willful, intentionally malicious, or showed an absolute failure to guard against a dangerous condition. The plaintiff just argued that those actions factually were such a condition. Counsel for a client in court cannot make statements that are taken as factual, unless those statements are made as facts and go against the interest of the attorney’s client.
The court reluctantly agreed that the statute protected the City of Henderson from a lawsuit of this nature. The land was protected under NRS 41.510 as well as the activity, and the court could find no way around the amended statute.
Conclusion
It is always tough to read a decision where the court has no option but to rule in a way that is not a happy ruling. This is one of those cases where the Nevada Recreational Use Statute has forced the Nevada Supreme Court to recognize that land owners who open their land for recreation without charging a fee should be immune from suit for any injury that occurs on the land.
Abbott v. City of Henderson, 140 Nev.Adv.Op. 3, 84439 (Nev. Jan 25, 2024)
