California Court of Appeals Holds Government Not Liable for Risks Inherent in Use of Tree Rope Swing Located In County Park

In a personal injury case involving allegations of negligence on the part of the County of San Diego, the California Court of Appeal addressed whether the government was liable for injuries suffered by a teenager using a rope swing located in an open space area. Government Code section 831.7 provides immunity to the government from liability to those injured while participating in “hazardous recreational activities.”  There are exceptions to this immunity, and the court analyzed whether those exceptions applied in this case involving a hazardous activity.

SwingingBenjamin Casteen was a high school student at the time of the accident.  He had used rope swings at Damon Lane County Park for years. While swinging on a tree above a ravine, the rope broke, and Mr. Casteen fell into the ravine, suffering injuries to his head and face.  Mr. Casteen stated that his custom and habit was to visually check the rope and branch before taking a small swing to test the rope.

Mr. Casteen sued the County of San Diego on the grounds of general negligence as well as maintenance of a dangerous condition under section 835, arising from actual and constructive notice of the defective condition of the rope swing, failure to maintain the swing, and failure to protect and provide a warning.  The County asserted its immunity under section 831.7 and moved for summary judgment. The trial court denied the County’s motion for summary judgment on the basis that a disputed material fact remained as to whether the County deposited debris in the ravine and whether this constituted a separate danger not included in the hazardous activity of rope swinging.

The Court addressed public entity immunity under section 831.7, precluding a finding of liability against a public entity for hazardous recreational activities. Under this section, tree rope swinging would be considered a “hazardous recreational activity.”  The exceptions to this section include failure to warn or guard against a dangerous condition that was not assumed as inherent in the activity, as well as gross negligence that proximately caused the injury.

Regarding the failure to warn exception, the court stated that the exception applies when the injury is partly due to the public entity failing to warn against a dangerous condition that is not inherent to the risk of the hazardous activity.  In this case, the debris in the ravine, left by County personnel, did not create a substantial risk of injury, assuming the park was used with due care.  The court stated that Mr. Casteen did not use the park with due care when he swung from a rope swing 10 feet off the ground.

The court also stated that Mr. Casteen’s subjective belief that tree rope swinging was not a dangerous activity that involves a substantial risk of harm is irrelevant. The statute looks to the reasonable assumptions of the public.  Simply by using the rope swing, Mr. Casteen assumed the inherent risk that a rope or branch might break, and he could be injured by falling. The court held the failure to warn exception did not apply.

The failure to maintain exception was also rejected by the appellate court. A dangerous condition is one that creates a substantial risk of injury when used with due care. Here, Mr. Casteen alleged that the existence of the rope swing constituted a dangerous condition. But the court stated that public entities do not have a duty to remove all items on their land that could potentially pose hazards to individuals not exercising due care.  The existence of the rope swing did not create a risk of injury when the park is used with due care.

The court stated policy reasons for limiting the use of the exclusion. Public entities are not responsible for policing large expanses of land for recreational equipment left by third parties. Mr. Casteen could have avoided the abandoned recreational equipment.

Finally, the gross negligence exclusion did not apply because public entities do not have a duty to remove or maintain items that could potentially pose hazards to people not using due care. The County did not have a duty to warn of the risk of falling on debris if a tree rope swing breaks. That is an inherent risk of that activity.

Since none of the exceptions to Government Code section 831.7 applied, the court granted the County’s motion for summary judgment.

At Sharifi Firm, our personal injury attorneys represent individuals injured throughout Southern California. We provide a free, confidential consultation and can be reached by calling 866-422-7222.

More Blog Posts:

California Supreme Court Reverses Judgment for City Because Plaintiff Need Not Prove Dangerous Condition Caused Third-Party Conduct, Southern California Injury Lawyer Blog, November 20, 2015

California Court of Appeal Affirms Judgment in Favor of City Due to Public Entity Immunity, Southern California Injury Lawyer Blog, September 1, 2015

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