B. Wright v. Twp. of Bristol ( 2021 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Betty Wright, :
Appellant :
:
v. : No. 814 C.D. 2020
: Submitted: June 7, 2021
Township of Bristol :
BEFORE: HONORABLE P. KEVIN BROBSON, President Judge
HONORABLE J. ANDREW CROMPTON, Judge (P.)
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CROMPTON FILED: August 6, 2021
Betty Wright (Wright) appeals a July 31, 2020 Order of the Bucks
County Court of Common Pleas (trial court) granting the Township of Bristol’s
(Township) motion for summary judgment. Wright filed a complaint with the trial
court alleging that the Township is liable for ankle injuries she sustained while using
a tube slide at a park within the Township because it knew or should have known
that depressions in the ground at the park’s playground pose a serious risk of harm
to persons. Wright further asserts that the Township had ample time, resources, and
opportunity to address the dangerous condition of its property but failed to do so, or,
alternatively, failed to warn of the dangerous condition of its property, causing her
injuries. The Township contends that it is immune from liability for Wright’s
injuries under the Recreational Use of Land and Water Act (RULWA)1 because the
park and playground in question are considered “land” as defined by the statute.
Upon consideration, we affirm the Order of the trial court.
I. Background
On October 22, 2015, Wright visited Carol Counts Park (Park), a public
park in the Township, consisting of mostly open space and a small playground for
recreational use by the public, with her two-year-old goddaughter. Reproduced
Record (R.R.) at 127a-28a, 492a. While at the Park, Wright went down a tube/tunnel
slide with her goddaughter seated in her lap. Id. at 138a, 146a. When she landed at
the bottom of the slide, Wright’s foot went into a depression at the base of the slide,
twisting her ankle and causing injury. Id. at 147a. A photograph of the base of the
slide from the time of Wright’s injuries shows that the Park’s playground surface
consisted of soft-fall wood chips. Id. at 519a.
Wright sustained a comminuted fracture of her distal tibia and fibula
necessitating closed reduction with application of an external fixator on October 27,
2015, open reduction and internal fixation of a right pilon fracture on November 18,
2015, and removal of her external fixator with internal fixation of a non-healing
fibula on February 3, 2016. Id. at 520a-21a.
On October 20, 2017, Wright filed a writ of summons against the
Township with the trial court, and on January 5, 2018, she filed a complaint alleging
that the Township possessed and controlled the Park and that the Township knew or
should have known that depressions in the ground at the playground pose a serious
risk of harm. Further, Wright argued that the Township failed to timely repair or
warn of the dangerous condition of its property, resulting in her injuries.
1
Recreational Use of Land and Water Act, Act of February 2, 1966, P.L. (1965) 1860, as
amended, 68 P.S. §§ 477-1 – 477-8.
2
Following discovery, on March 6, 2020, the Township filed a motion
for summary judgment seeking immunity under the RULWA. R.R. at 60a. The trial
court held argument on July 31, 2020, and on the same day, the trial court granted
the Township’s motion for summary judgment dismissing Wright’s claims. R.R. at
20a. In the trial court’s opinion in support of its decision granting summary
judgment, dated October 6, 2020, the trial court explained:
The Court granted summary judgment for [the Township] because
[Wright’s] claims are barred by the Pennsylvania Political Subdivision
Tort Claims Act (“TCA”).[2] The real property exception to the TCA
does not apply because [the Township] owed no duty of care to
[Wright] under the [RULWA].[3]
Trial Ct. Op., 10/06/2020, at 4. Wright now appeals to this Court.4
2
The act commonly known Political Subdivision Tort Claims Act, 42 Pa. C.S. §§8541-
8542.
3
In its opinion, the trial court states:
[Wright] argues that the real property exception to the TCA applies because her
[injuries] resulted from the care, custody, and control of real property. In response,
[the Township] argues that the real property exception does not apply because
[Wright’s] damages are recoverable under common law if the [injuries] were
caused by a person not having a defense available under the TCA because [the
Township] owed no duty of care to [Wright] pursuant to the [RULWA]. Therefore,
the determination of whether the real property exception to the TCA applies in this
matter is dependent on whether the protections of the [RULWA] apply in this case.
Trial Ct. Op., 10/06/2020, at 7 (internal citations omitted). We adopt the trial court’s view, and
therefore, we will not independently evaluate whether the real property exception to the TCA
applies in this case.
4
Our scope of review of a trial court’s order granting summary judgment is limited to
determining whether the trial court made an error of law or abused its discretion. Brown v.
Tunkhannock Twp., 665 A.2d 1318, 1320 n.2 (Pa. Cmwlth. 1995) (citing Salerno v. LaBarr, 632
A.2d 1002 (Pa. Cmwlth. 1993)). Summary judgment shall be entered where the pleadings,
3
II. Discussion
Before this Court, Wright argues that the trial court erred, misapplied
the law, or acted in a manifestly unreasonable manner in holding that the Park and
the playground therein are considered “land” as defined by the RULWA, such that
the Township did not owe her a duty of care. Wright specifically asserts that the
Park is an improved recreational facility under the RULWA and therefore does not
fall within the scope and intent of the RULWA’s protection from liability. The
Township counters that the trial court did not commit an error of law or abuse its
discretion as the Park and playground are considered “land” as defined by the
RULWA.5
depositions, answers to interrogatories, and admissions together with affidavits, if any,
demonstrate that there is no genuine issue as to any material fact and the moving party is entitled
to judgment as a matter of law. Brown, 665 A.2d at 1320 n.2 (citing Pa. R.C.P. No. 1035(b);
Marks v. Tasman, 589 A.2d 205 (Pa. 1991)). In deciding a motion for summary judgment, the
record must be reviewed in the light most favorable to the non-moving party, and summary
judgment may be entered only in cases where the right to relief is clear and free from doubt.
Brown, 665 A.2d at 1320 n.2 (citing Hayward v. Med. Ctr. of Beaver Cnty., 608 A.2d 1040 (Pa.
1992)).
5
On appeal, the Township also argues that Wright’s brief to this Court was untimely, and
therefore, this Court should dismiss the instant appeal. On December 18, 2020, this Court granted
Wright a 30-day extension to file her brief and Reproduced Record and ordered the same be filed
on or before January 21, 2021. Wright’s brief and Reproduced Record were filed with this Court
on January 22, 2021, at 11:00 a.m.
Pennsylvania Rule of Appellate Procedure 2188 states:
If an appellant fails to file his designation of reproduced record, brief or any
required reproduced record within the time prescribed by these rules, or within the
time as extended, an appellee may move for dismissal of the matter. If an appellee
fails to file his brief within the time prescribed by these rules, or within the time as
extended, he will not be heard at oral argument except by permission of the court.
4
The RULWA defines “land” as:
land, roads, water, watercourses, private ways and buildings, amenities,
structures, boating access and launch ramps, bridges, fishing piers, boat
docks, ramps, paths, paved or unpaved trails, hunting blinds and
machinery or equipment when attached to the realty. The term shall
also include areas providing access to, or parking for, lands and waters,
including, but not limited to, access ramps, trails or piers for use by
recreational users with disabilities.
Section 2 of the RULWA, 68 P.S. § 477-2. Thus, the RULWA provides an
expansive definition of “land,” including more than naturally occurring land
features. See id. In outlining its purpose, the RULWA describes a limitation on
landowner liability, stating:
The purpose of this act is to encourage owners of land to make land and
water areas available to the public for recreational purposes by limiting
their liability to:
(1) recreational users; and
(2) persons or property based on:
(i) acts of omission by landowners; or
(ii) acts or acts of omission by recreational users.
Section 1 of the RULWA, 68 P.S. § 477-1. Further, a landowner owes no duty of
care to keep the premises safe for entry or use by others for recreational purposes,
or to give any warning of a dangerous condition, use, structure, or activity on such
Pa. R.A.P. 2188. This Court has previously held that in the case where a brief is untimely filed, if
the length of delay is not “so egregious,” the circumstances need not require dismissal of the case
in its entirety. Dep’t of Transp., Bureau of Traffic Safety v. March, 515 A.2d 661, 663 (Pa.
Cmwlth. 1986). In the instant case, Wright’s brief was filed 11 hours after the briefing deadline.
As the filing delay was minimal, we decline to dismiss Wright’s appeal due to lack of timeliness.
5
premises to persons entering for such purposes. Section 3 of the RULWA, 68 P.S.
§ 477-3.
Wright asserts that the Park does not constitute “land” as contemplated
by the RULWA and posits that our Supreme Court and appellate courts have
previously assessed liability under the RULWA based on whether the “land” was
improved or had improvements on it. See Bashioum v. Cnty. of Westmoreland, 747
A.2d 441, 443 n.2 (Pa. Cmwlth. 1999). Citing Rivera v. Philadelphia Theological
Seminary of St. Charles Borromeo, Inc., 507 A.2d 1, 8 (Pa. 1986), Wright notes that
our Supreme Court intended to “limit the applicability of the [RULWA] to outdoor
recreation on largely unimproved land[.]” Additionally, “when a recreational
facility has been designed with improvements that require regular maintenance to be
safely used and enjoyed, the owner of the facility has a duty to maintain those
improvements.” Walsh v. City of Phila., 585 A.2d 445, 450 (Pa. 1991).
While the Township acknowledges the case law cited by Wright, it
argues that the Park is not an improved recreational facility and is considered “land”
within the scope of the RULWA’s immunity provision. Additionally, the Township
asks this Court to consider that even the decisions of our Supreme Court and
appellate courts cited by Wright contain more detailed interpretations of what type
of land is meant to receive protection under the RULWA. For example, in Rivera,
our Supreme Court differentiated between “ancillary structures attached to open
spaced lands” and “enclosed recreational facilities in urban regions.” 507 A.2d at
15. Ancillary structures attached to open space land generally receive protection
under the RULWA. Id. at 8.
When determining if a landowner receives immunity under the
RULWA, five factors must be considered: use, size, location, openness, and the
6
extent of improvement. See Yanno v. CONRAIL, 744 A.2d 279 (Pa. Super. 1999).6
When the owner of the property has opened the property up for exclusively
recreational use as opposed to business use, the property is more likely to receive
protection under the RULWA. Yanno, 744 A.2d at 282. Additionally, the larger the
property, the more likely it is to receive protection as it is more difficult for the owner
to perform reasonable maintenance on the property. Id. Further, the more remote
the property, the more likely it is to receive protection as the user would not expect
the owner to monitor and maintain the property, and similarly, a property that is
more open is more likely to receive protection over a property that is closed. Id. at
282-83. Finally, if the property is highly developed, it is less likely to receive
protection because if a landowner develops the property, a user enjoys a reasonable
expectation of maintenance by the landowner. Id. at 283.
The Township asserts that, in consideration of these five factors, the
trial court did not commit an error of law or abuse its discretion by finding that the
Park must be afforded the liability protections of the RULWA. In its opinion, the
trial court explained that “the record clearly shows that the parties agree that the
[P]ark is owned by [the Township] and that it ‘is a public park in the Township that
has open space as well as a playground for recreation use by public.’” Trial Ct. Op.,
10/06/2020, at 8 (internal citations omitted). “There was no evidence presented that
[the Township] charged [Wright] (or any other member of the public) for use of the
park.” Id. at 9. “Additionally, the parties agree that [Wright] was using the
playground at the [P]ark for recreation.” Id. “Therefore, it is clear that [Wright] was
6
Although not binding, Superior Court decisions are persuasive authority in this Court.
Lerch v. Unemployment Comp. Bd. of Rev., 180 A.3d 545, 550 (Pa. Cmwlth. 2018).
7
a ‘recreational user’[7] under the [RULWA].” Id. “The parties’ dispute hinges on
whether the area where the injury occurred is ‘land’ under the [RULWA].” Id.The application of the RULWA to a piece of property at issue, or the
entire piece of property, cannot be fixed for every case, but such a determination
must be made on a case-by-case basis. Bashioum, 747 A.2d at 446. The facts of
each case must be considered to determine whether a playground, or the portion of
it at issue, constitutes largely improved land. Zackhery v. Crystal Cave Co., 571
A.2d 464 (Pa. Super. 1990). Therefore, in the instant case, the main question as to
whether the Township is entitled to immunity under the RULWA is whether the
playground at the Park is considered developed to the extent that the Park is
“improved.” See id.Before the trial court and within her brief submitted to this Court,
Wright cites to and discusses two decisions of our Supreme Court, Rivera and Walsh,
in support of her assertion that “it is well [] settled that the [RULWA] does not
immunize landholders from liability for injuries occurring on municipal
playgrounds.” Trial Ct. Op., 10/06/2020, at 9 (internal citations omitted). In Rivera,
the decedent died by accidental drowning in an indoor swimming pool. While our
Supreme Court held that the RULWA did not apply in that instance, it emphasized
that the accident occurred in an indoor swimming pool, stating that after surveying
the decisions of dozens of state jurisdictions, “we have been unable to find a single
case . . . in which an indoor recreational activity was held to fall within the purview
of a recreational use act.” Rivera, 507 A.2d at 8-9. However, in its decision, our
Supreme Court did note that the legislature intended for the RULWA to apply to
“outdoor recreation on largely unimproved land.” Id. at 8. Further, “[t]he need to
7
The RULWA defines a “recreational user” as a person who enters or uses land for a
recreational purpose. Section 2 of the RULWA, 68 P.S. § 477-2.
8
limit owner liability derives from the impracticability of keeping large tracts of
largely undeveloped land safe for public use. The same need does not arise in the
case of indoor recreational facilities, which in contrast, are relatively easy to
supervise and monitor for safety hazards.” Id. at 8, n.17.
In Walsh, the plaintiff “fractured his left ankle when he fell in a hole in
the blacktopped surface” of “a paved inner-city playground and recreation center”
during a basketball game. 585 A.2d at 446. Specifically, the playground at issue
was “a cement recreational facility.” Id. at 450. In holding that the RULWA did
not apply, our Supreme Court highlighted the fact that the recreation center was “a
completely improved recreational facility.” Id. The Supreme Court opined:
When a recreational facility has been designed with improvements that
require regular maintenance to be safely used and enjoyed, the owner
of the facility has a duty to maintain the improvements. When such an
improved facility is allowed to deteriorate and that deterioration causes
a foreseeable injury to persons for whose use the facility was designed,
the owner of the facility is subject to liability.
Id. at 450-51.
While the trial court noted that Rivera and Walsh are “instructive” for
the purposes of the instant case, neither case fully captures the circumstances
surrounding Wright’s injuries and the Park in question. Trial Ct. Op., 10/06/2020,
at 12. The trial court found that the facility in Rivera is “obviously distinguishable”
from the Park in this case because while Rivera involved an indoor swimming pool,
the Park is outdoors with a playground. “Upon review of the photographs of [the
Park] and consideration of the parties’ agreed description of the [P]ark as ‘a public
park . . . that has open space as well as a playground for recreation use by the public’
. . . [the] Park is clearly properly categorized as an ancillary structure to open space
land.” Trial Ct. Op., 10/06/2020, at 15 (emphasis in original).
9
Further, in considering Walsh, Wright argues that the “improvements”
on the Park require “regular maintenance to be safely used and enjoyed, and thus
[the Township] had a duty to do so.” Trial Ct. Op., 10/06/2020, at 15 (internal
citations omitted). Thus, Wright asserts that, by allowing the property to deteriorate,
the Township is responsible for her foreseeable injuries, resulting from the
deterioration of the Park and playground facility. However, the trial court explained:
[T]his argument is unpersuasive. If the test for whether the [RULWA]
applies is whether there is a structure that “requires maintenance to be
safely used and enjoyed,” then the statute’s explicit inclusion of
“structures” and “buildings” in the definition of “land” would be
meaningless. Every building or structure requires maintenance to be
safely used and enjoyed. Again, the exception would swallow the rule.
Trial Ct. Op., 10/06/2020, at 15 (emphasis in original).
In response to Wright’s assertions, the Township cites several cases in
which this Court upheld summary judgment under the RULWA in situations where
injuries occurred on playgrounds that contained structures that “required regular
maintenance to be safely used and enjoyed.” See generally Farley v. Twp. of Upper
Darby, 514 A.2d 1023 (Pa. Cmwlth. 1986) (child injured falling off slide in
municipal playground); Favoroso v. Bristol Borough, 569 A.2d 1045 (Pa. Cmwlth.
1990) (child injured on rock on ground in municipal playground); Zackhery, 571
A.2d at 464 (child injured falling off slide in a playground). As in the cited cases,
the Township asserts that, in the instant case, there is no evidence that the Park – or
the slide – required above normal maintenance.8 The slide and wood chips contained
8
According to Township employees, routine maintenance on the parks was conducted as
needed throughout the entirety of the Township. This maintenance included looking for hazards
and unsafe conditions. R.R. at 290a.
10
within the Park’s playground do not constitute such an improvement as to take it
outside the protections of the RULWA.
An improvement on a property alone does not automatically remove
the property from the protections provided under the RULWA. Yanno, 744 A.2d at
282. “[T]he [RULWA] itself recognizes that the presence of buildings and structures
on the land does not necessarily render the land improved for the purposes of the
[RULWA].” Pagnotti v. Lancaster Twp., 751 A.2d 1226, 1232 (Pa. Cmwlth. 2000).
Per the parties’ agreed upon Park description, the Park is an open, outdoor space that
offers free-of-charge use to the public for recreational purposes. While Wright
provided examples of cases where the RULWA liability exemptions did not apply,
in those cases, the facilities, including an indoor swimming pool and fully improved
blacktopped athletic courts, varied greatly from those at issue in the present case. In
the absence of open, outdoor space, the premises described in Rivera and Walsh do
not constitute the types of spaces contemplated under the RULWA.
In contrast, the Park, here, is considered “land” under the RULWA and
the slide is, accordingly, an ancillary structure, not an improvement. This Court has
previously held, in circumstances similar to the present matter, that a trial court does
not err by granting summary judgment in favor of a landowner. Because the trial
court considered the instant case in light of its specific factual context and our state’s
full body of RULWA-related case law, the trial court did not commit an error of law
or abuse its discretion in granting the Township’s motion for summary judgment.
11
III. Conclusion
Because the trial court did not err in granting the Township’s motion
for summary judgment, we affirm.
______________________________
J. ANDREW CROMPTON, Judge
12
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Betty Wright, :
Appellant :
:
v. : No. 814 C.D. 2020
:
Township of Bristol :
ORDER
AND NOW, this 6th day of August 2021, we AFFIRM the July 31,
2020 Order of the Bucks County Court of Common Pleas.
______________________________
J. ANDREW CROMPTON, Judge