§62.3 Impact of the Recreational Use Statute

The Case: Morgan v. State of Tennessee , No. M2002-02496-COA-R3-CV, 2004 WL 170352 (Tenn. Ct. App. Jan. 27, 2004).

The Basic Facts: Plaintiff died when she fell off of a bluff at a state park.

The Bottom Line:

• "The operation of the recreational use statutes is straightforward. Tenn. Code Ann. § 70-7-102 is an affirmative defense available to persons who fit within the definition of 'landowner' in Tenn. Code Ann. § 70-7-101(2). Parent v. State, 991 S.W.2d 240, 242 (Tenn. 1999); Bishop v. Beckner, 109 S.W.3d 725, 728 (Tenn. Ct. App. 2002). Landowners may assert a Tenn. Code Ann. § 70-7-102 defense if they prove that the injured person was engaged in a recreational activityat the time of the injury. Plaintiffs may defeat this affirmative defense in essentially three ways: (1) prove that the defendant is not a 'landowner,' (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner's conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104. The exceptions in Tenn. Code Ann. § 70-7-104 do not create new independent causes of action against the landowner. Rather, they enable a plaintiff to pursue its negligence claim by negating a landowner's Tenn. Code Ann. § 70-7-102 defense. Parent v. State, 991 S.W.2d at 242-43." 2004 WL 170352 at *4 (footnote omitted).
• "Applying Tenn. Code Ann. §§ 70-7-101, - 105 to a particular case requires a three-step analysis. First, the court must determine whether the party asserting the Tenn. Code Ann. § 70-7-102 defense is a landowner. Second, the court must determine whether the activity in which the injured party was engaged at the time of the injury is a recreational activity. Third, the court must determine whether any of the exceptions in Tenn. Code Ann. § 70-7-104 are applicable to the case. See Parent v. State, 991 S.W.2d at 243. If the activity is recreational and no Tenn. Code Ann. § 70-7-104 exceptions apply, the landowner is shielded from liability by Tenn. Code Ann. § 70-7-102. If, however, the activity is recreational, but one of the exceptions applies, the landowner may be liable." Id. at *5.
• "Based on the undisputed facts, there can be no dispute (1) that the State, as a governmental entity, is a 'landowner' under Tenn. Code Ann. § 70-7-101(2)(B), (2) that Ms. Zegilla was engaged in a recreational activity because she was 'hiking' or 'sightseeing' when she fell to her death, and (3) that the land on which Ms. Zegilla was killed was not exempt from coverage of the statute. Thus, the only remaining question with regard to the application of the recreational use statute is whether one of Tenn. Code Ann. § 70-7-104's exceptions applies to this case. Ms. Morgan insists that the exception for gross negligence in Tenn. Code Ann. § 70-7-104(1) applies." Id.
• "Gross negligence is negligent conduct reflecting a reckless disregard for the safety of others. Davidson v. Power Bd., 686 S.W.2d 581, 586 (Tenn. Ct. App. 1984); Odum v. Haynes, 494 S.W.2d 795, 807 (Tenn. Ct. App. 1972). It does not require a particular state of mind as long as it creates an extremely unjustified risk to others. 1 DAN B. DOBBS, THE LAW OF TORTS § 147, at 351 (2001). It differs from ordinary negligence only in degree, not in kind. W. PAGE KEETON, PROSSER & KEETON ON THE LAW OF TORTS § 34, at 212 (5th ed. 1984). Thus, gross negligence is a negligent act or failure to act that reflects more than lack of ordinary care (simple negligence) but less than intentional misconduct. Inter-City Trucking Co. v. Daniels, [178 S.W.2d 756, 757 (Tenn. 1944)]; Bennett v. Woodard, [444 S.W.2d 89, 94 (Tenn. Ct. App. 1969)]." Id.
• "We find no evidence in this record upon which a reasonable person would conclude that the State was grossly negligent with regard to the construction or maintenance of the Colditz Cove State Natural Area. The State had a statutory obligation to maintain this area in a pristine, natural condition. Erecting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary at a natural area such as Colditz Cove. Accordingly, we have determined that the record, as a matter of law, supports the claims commissioner's conclusion that 'there was not any gross negligence.' The State was simply not acting recklessly with disregard of the safety of persons entering the natural area." Id. at *6.

Other Sources of Note: Parent v. State, 991 S.W.2d 240 (Tenn. 1999) (bicycling is a recreational activity and therefore plaintiff's claims are barred by statute); Matthews v. State, No. W2005-01042-COA-R3-CV, 2005 WL 3479318 (Tenn. Ct. App. Dec. 19, 2005) (slip and fall on an irregular sidewalk; claim barred by statute); Bishop v. Beckner, 109 S.W.3d 725 (Tenn. Ct. App. 2002) (claim against private landowner by plaintiff who fell from ledge in cave on landowner's property barred by statute).

Recent Cases:  Wilson v. Dossett, No. E2012-01251-COA-R3-CV, 2013 WL 3021307 (Tenn. Ct. App. June 14, 2013) (affirming summary judgment for defendant under Recreational Use Statutes where plaintiff was riding a motorcycle on defendant’s property on a track with jumps and was injured; court rejected plaintiff’s argument that the recreational use laws only apply when the land feature at issue is natural).