Recently, a state appellate court issued a written opinion in a personal injury case involving a plaintiff’s injuries that were sustained while riding his bike in a public park. The case presents an important issue for Virginia premises liability plaintiffs in that it discusses the concept of recreational-use immunity, which also applies in Virginia.
The case required the court to determine whether the plaintiff’s case should be permitted to proceed against the city that was responsible for maintaining the park, or if the park was entitled to recreational-use immunity. Ultimately, the court determined that the city was entitled to recreational-use immunity because the plaintiff failed to establish that the city knew of the hazard that caused his fall.
The Facts of the Case
According to the court’s opinion, the plaintiff fell off his bike and was seriously injured after striking a pothole while riding on a trail in a public park that was maintained by the defendant city. The plaintiff filed a premises liability case against the city.
The city argued that the case should be dismissed under the state’s recreational-use statute. That statute provides immunity to landowners when they allow others to use their land for recreational purposes at no cost. There is an exception, however, when the plaintiff’s injury is the result of the defendant landowner’s “willful or malicious failure to warn” them of a hazard. The plaintiff argued that the city willfully or maliciously failed to warn him of the pothole.
The court dismissed the plaintiff’s claim, finding that the plaintiff presented insufficient evidence to establish that the city knew of the pothole. Because the city was not shown to know of the hazard’s existence, the court held that there was no way it could have been willful or malicious in failing to warn the plaintiff.
Virginia’s Recreational-Use Statute
The Virginia recreational-use statute is contained in Virginia Code § 29.1-509, and provides that landowners do not owe a duty of care for those who are allowed entry for “hunting, fishing, trapping, camping, participation in water sports, boating, hiking, rock climbing, sightseeing, hang gliding, skydiving, horseback riding, fox hunting, racing, bicycle riding or collecting, gathering, cutting or removing firewood, for any other recreational use.” Importantly, the recreational-use statute only applies if the landowner does not charge a fee for the use of their land. Additionally, the statute does not protect a landowner from their own “gross negligence or willful or malicious failure to guard or warn against a dangerous condition.”
Have You Been Injured on Another’s Property?
If you have recently been injured in a Virginia slip-and-fall accident, or any other injury that occurred on another’s property, you should consult with the dedicated Virginia personal injury lawyers at the law firm of The Schupak Law Firm Led by Attorney Sidney Schupak, our firm is composed of experienced and compassionate Virginia personal injury attorneys who proudly work to obtain full and fair compensation for Virginia accident victims. To learn how we can help you, call 703-491-7070 to schedule a free consultation today.
See More Blog Posts:
Court Discusses Instructor’s Duty and Potential Liability in Recent Yoga Injury Case, Virginia Injury Lawyers Blog, September 13, 2018.
Accident Victims Can Stack Underinsured Motorist Policies in Virginia, Virginia Injury Lawyers Blog, September 28, 2018.