            IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Esther James                                :
                                            :
      v.                                    : No. 46 C.D. 2018
                                            : ARGUED: November 15, 2018
County of Bucks,                            :
                       Appellant            :

BEFORE:        HONORABLE P. KEVIN BROBSON, Judge
               HONORABLE MICHAEL H. WOJCIK, Judge
               HONORABLE ELLEN CEISLER, Judge

OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE CEISLER                                            FILED: December 21, 2018

      Appellant, County of Bucks (the County), appeals an Order of the Court of
Common Pleas of Bucks County (Trial Court) entering judgment on a jury verdict
in favor of Esther James (Appellee) and against the County for personal injuries
Appellee sustained when she fell off her bicycle in a park owned by the County. The
issue before this Court is whether the Trial Court erred in not granting the County
immunity pursuant to the Recreational Use of Land and Water Act (RULWA).1
After careful review, we affirm the Trial Court.

                                       I. Background

      Peace Valley Park (the Park) is a 1,500-acre county public park located in
New Britain Township, Bucks County. Tr. Ct. Op., 7/12/17, at 2; Reproduced
Record (R.R.) at 749a. The Park is situated within a largely agricultural and rural
area of the County. County Memorandum of Law in Support of Motion for
Judgment Notwithstanding the Verdict (JNOV), 5/31/17, at 13; R.R. at 713a. The


      1
          Act of February 2, 1966, P.L. (1965) 1860, as amended, 68 P.S. §§ 477–1 to 477–8.
Park land is owned by the County and is open for free to the public for recreational
activities including biking, fishing, boating and walking. County’s Motion for
Summary Judgment ¶2; R.R. at 16a; County’s Memorandum of Law in Support of
Motion for Summary Judgment at 3; R.R. at 69a. One of the features in the Park is
a paved trail that is regularly used by hikers and cyclists. Part of that paved trail is
Chapman Road. Chapman Road was formerly utilized as a public road open for
vehicle traffic, but eventually became dedicated for recreational purposes only. Tr.
Ct., 3/27/17, Notes of Testimony (N.T.) at 74; R.R. at 277a. Right before a bridge
on Chapman Road was a gate made of a thin wire cable that stretched across the road
and connected at each end to a bollard.2 The cable was installed in the 1980s to
prevent motorized vehicles from using the street and was partially covered in white
plastic. Tr. Ct., 3/27/17, N.T. at 76; R.R. at 279a. Tr. Ct., 3/28/17, N.T. at 20, 32-
33; R.R. at 367a, 379a-80a.
      On May 28, 2006, Appellee was riding her bicycle on the Chapman Road
portion of the trail. As she approached the bridge, she did not see the cable gate and
struck it with her bicycle and fell to the ground. Appellee suffered serious injuries
to her right knee that ultimately required reconstructive surgery. Tr. Ct., 3/27/17,
N.T. at 16-17; R.R. at 118a-19a, 606a. Appellee filed a civil action against the
County alleging that the County had negligently maintained the gate and seeking
damages for her injuries. Trial Court, Office of Court Administration, Civil Action
Case No. 0804948-25-2 at 1; R.R. at 1a-7a.
      Prior to trial, the County filed a summary judgment motion arguing that the
County was entitled to immunity under the RULWA. Another Trial Court judge was
responsible for ruling on the summary judgment motion. The motions judge


      2
          A bollard is a sturdy, short, vertical post.


                                                    2
determined that immunity did not apply and the motion was denied. The Trial Judge
accepted that determination as the law of the case and the case proceeded to a jury
trial.
         At the trial, William Mitchell, executive director of the Bucks County
Department of Parks and Recreation, testified for Appellee to the following:
              Between 200,000 to 250,000 people use the Park every year. Tr. Ct.,
                3/28/17, N.T. at 38; R.R. at 385a.
              There is a cable gate before the bridge on the Chapman Road part of
                the paved trail. Tr. Ct., 3/28/17, N.T. at 8; R.R. at 355a.
              The cable gate has been in the Park since the 1980s. Tr. Ct., 3/28/17,
                N.T. at 32-33; R.R. at 379a-380a.
              Individuals visiting the Park would sometimes sit on the cable causing
                the cable to stretch and sag to the ground and the bollards to move.
              The Park employed five full-time maintenance workers. R.R. at 38a,
                Dep. of William Mitchell, 3/17/10, at 8. The maintenance workers
                would tighten the cable when it became loose and sagged, and would
                tie orange or white polyurethane tape on the cable “to let people know
                there was a [c]able there.” Tr. Ct., 3/28/17, N.T. at 36-37; R.R. at 383a-
                84a. Tr. Ct., 3/28/17, N.T. at 25; R.R. at 372a.
              At the time of Appellee’s injury the cable had “some pieces of PVC
                pipe attached to it.” Tr. Ct., 3/28/17, N.T. at 26; R.R. at 373a.
         Marianne Dubresson, also an employee of the Bucks County Department of
Parks and Recreation, testified with regard to the temporary removal of the cable as
follows:3

         3
          Ms. Dubresson testified via deposition on October 14, 2010. Her deposition is not part
of the record. Her testimony was read at trial by Appellee’s attorney.


                                               3
       Q: To your knowledge, is [the cable] ever removed for any purpose?
       Are there situations where either [the County’s] vehicles or any other
       public vehicles are permitted to use that roadway?

       A: They have a couple of running events in September, and I think
       there is another one where they actually remove the cable so all the
       runners can run through, and then they put [the cable] back as soon as
       it is finished.
Tr. Ct., 3/28/17, N.T. at 49; R.R. at 396a
       At the completion of the trial, the jury found the County 51% contributorily
negligent and Appellee 49% contributorily negligent.4 The County filed post-trial
motions which were denied. Thereafter, the Trial Court entered judgment on the
jury’s verdict. The County now appeals.
                                            II. Issue
       On appeal,5 the County essentially argues that the Trial Court erred in holding
that the County was not entitled to immunity under the RULWA.6


       4
          The jury awarded a total damages award of $50,000. Tr. Ct., 3/29/17, N.T. at 124; R.R.
at 592a. Thereafter, Appellee filed a petition for delay damages. Appellee’s Petition for Delay
Damages Pursuant to Pa. R.C.P. No. 238, 4/7/17, 1-3; R.R. at 691a-93a. The Trial Court issued
an order awarding $7,500 in delay damages. Tr. Ct. Order, 10/30/17, at 1-2; R.R. at 775a-76a.
Judgment was entered by the Trial Court to include delay damages for a total judgment of $33,000
after the award was molded to reflect Appellee’s apportionment of contributory negligence. Tr.
Ct. Order, 3/9/18 at 1; R.R. at 796a.

       5
        This Court’s scope of review as to whether a particular immunity applies is plenary.
Feldman v. Hoffman, 107 A.3d 821 (Pa. Cmwlth. 2014).

       6
           The County raises several issues on appeal including whether:

       The Trial Court Erred in Utilizing an Overly Technical Application in Denying
       Immunity to the County;

       The Trial Court Erred in Disregarding the Need for Immunity Arising from the
       Impracticality of Keeping Large Tracts of Mostly Undeveloped Land Safe for
       Public Use; [and]



                                                 4
                                        III. Discussion
       The RULWA was enacted in 1966 “to encourage owners of land to make land
and water areas available to the public for recreational purposes by limiting their
liability.” Section 1 of the RULWA, 68 P.S. § 477-1. “Recreational purpose” is
defined in Section 2 of the RULWA to include “but is not limited to … hunting,
fishing, swimming, boating, recreational noncommercial aircraft operations or
recreational noncommercial ultralight operations on private airstrips, camping,
picnicking, hiking, pleasure driving, nature study, water skiing, water sports, cave
exploration and viewing or enjoying historical, archaeological, scenic, or scientific
sites.” 68 P.S. § 477-2(3).
       In furtherance of that purpose, the RULWA provides that, subject to certain
exceptions, “an owner of land owes no duty of care to keep the premises safe for
entry or use by others for recreational purposes or give any warning of a dangerous
condition, use, structure, or activity on such premises to persons entering for such
purposes.” Section 3 of the RULWA, 68 P.S. § 477-3. An owner who “directly or
indirectly invites or permits without charge any person to use such property for
recreational purposes”7 does not incur liability for injury to such persons, except
“[f]or willful or malicious failure to guard or warn against a dangerous condition,
use, structure or activity.” Section 6 of the RULWA, 68 P.S. § 477-6.




       The Trial Court Erred in Failing to Apply the Immunity Provided to Landowners
       to the County Where [Appellee] Failed to Plead or Show Willful or Malicious
       Conduct.

Appellant’s Br. at i. These issues all fall under the analysis of whether the County was entitled to
immunity.

       7
           Section 4 of the RULWA, 68 P.S. § 477-4.


                                                 5
        However, immunity under the RULWA is not absolute. In Walsh v. City of
Philadelphia, 585 A.2d 445, 450 (Pa. 1991), the Pennsylvania Supreme Court held
that:
        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. We do not believe that
        the [RULWA] was intended by the legislature to circumvent this basic
        principle of tort law.
        In Mills v. Commonwealth of Pennsylvania, 633 A.2d at 1118-1119 (Pa.
1993), our Supreme Court again reiterated the principles established in Walsh when
it addressed a claim of immunity by the City of Philadelphia, the Philadelphia
Redevelopment Authority and Penn’s Landing Corporation under the RULWA. This
case involved a plaintiff who was injured when she stepped into a hole on a grassy
slope located on a 37-acre tract of land owned by Penn’s Landing. This area led to a
museum ship docked at Penn’s Landing. The Supreme Court found that immunity
under the RULWA did not apply in these circumstances and that:

        landowners of large unimproved tracts of land, without alteration, is
        amenable to the enumerated recreational purposes within
        [RULWA]….[It] was not intended to insulate owners of fully
        developed recreational facilities from the normal duty of maintaining
        their property in a manner consistent with the property’s designated and
        intended use by the public.

Mills, 633 A.2d at 1118-1119 (emphasis added).
        In reaching this conclusion, the Supreme Court stated:
        it becomes clear that the area in question has been vastly altered from
        the natural state in which William Penn discovered it several hundred
        years ago…a landowner must bear the responsibility of maintaining
        improvements placed upon the land to which the general public is



                                           6
      permitted access. Ordinary users…may reasonably expect the area to
      be maintained in a manner safe for their normal recreational pursuits.

Mills, 633 A.2d at 1118-19 (emphasis added). The Supreme Court also recognized
that, “[a]lthough, it could be reasonably argued that the unimproved grassy and
wooded areas within Penn's Landing do fall within the ambit of [RULWA], such an
overly technical application of [RULWA] would certainly lead to inconsistent
results and thwart the intended purpose of the act.” Id.
      When deciding whether an area is “improved” for purposes of the RULWA,
“this Court’s focus must be on the specific land where the injury occurred, rather
than on the property as a whole.” Ruspi v. Glatz, 69 A.3d 680, 688 (Pa. Super. 2013).
“[O]ur courts have denied RULWA immunity … where injury occurred on the
developed portion of a largely unimproved recreational area.” Murtha v. Joyce, 875
A.2d 1154, 1159 (Pa. Super. 2005) (emphasis in original).
      In Pagnotti v. Lancaster Township, 751 A.2d 1226 (Pa. Cmwlth. 2000), this
Court enumerated the following factors that need to be considered in determining
whether the RULWA should insulate a landowner from tort liability:

             (1) the nature of the area in question, that is, whether it is urban
      or rural, indoor or outdoor, large or small;
             (2) the type of recreation offered in the area, that is, whether
      persons enter to participate in one of the recreational purposes listed in
      section 2(3) of the [RULWA];
             (3) the extent of the area’s development, that is, whether the site
      is completely developed and/or significantly altered from its natural
      state; and
             (4) the character of the area’s development, that is, whether the
      area has been adapted for a new recreational purpose or, instead, would
      be amenable to the enumerated recreational purposes of the [RULWA]
      even without alteration.




                                          7
Pagnotti, 751 A.2d at 1233-34. The Court in Pagnotti also deemed it appropriate to
consider any unique facts as additional factors when doing so would advance the
purpose of the RULWA. Pagnotti, 751 A.2d at 1233-34.
      Pagnotti involved a decedent who drowned when he slipped from, or swam,
over a low head dam on a creek in a park. Pagnotti, 751 A.2d at 1227. In
determining whether immunity under the RULWA applied, this Court considered
not only the unimproved nature of the park as a whole, but also examined the precise
location of where the injury occurred. This Court noted that the owner of the land
could not have foreseen an injury resulting from the low head dam’s disrepair
because it did not construct it or even know of its existence until the decedent’s
accident. For these reasons we determined that immunity did attach.
      Thus, as common law has evolved on the issue of whether immunity attaches
under the RULWA, it is clear that the analysis is a highly fact-specific determination
which must be undertaken on a case by case basis. Yanno v. Consolidated Rail
Corp., 744 A.2d 279, 283 (Pa. Super. 1999).
      In the case before us, the County argues that the Trial Court disregarded the
undeveloped nature of the Park as a whole and applied an overly-technical
application of the RULWA in its analysis of the cable gate. The County asserts that
the cable gate was not to be enjoyed or used in-and-of itself, but rather was in place
to permit visitors to enjoy the Park more safely without vehicular traffic.
Appellant’s Br. at 16; see also Tr. Ct., 3/28/17, N.T. at 33; R.R. at 380a.
      Here, it is undisputed that the 1,500-acre Park consisted mostly of unimproved
land dedicated to the public for recreational uses, however, the analysis does not end
there. We must also analyze the specific location where the injury occurred.




                                          8
       In the instant matter, the injury did not occur on undeveloped land, but rather
on an improved and paved road within the Park. The cable gate, which had been in
the Park since the 1980s, was a functioning gate used for crowd control and
emergency vehicle access. The gate was situated in an area of the Park that was
utilized by emergency vehicles and the public for a variety of recreational uses,
including cycling, hiking, and organized marathons. The gate was removed and
replaced depending on public activities occurring on the trail. Furthermore, the
Park’s maintenance crew was aware that individuals visiting the Park sat on the cable
causing it to stretch and sag to the ground. As a result, the Park’s maintenance crew
would conduct periodic maintenance on the gate which involved tightening the cable
and tying orange or white polyurethane tape on the cable to alert the public to the
presence of the cable.
       These facts establish that the cable gate was an improvement requiring
maintenance that the public had a reasonable expectation would be maintained. Tr.
Ct. Op., 2/12/18 at 13. Tr. Ct., 3/28/17, N.T. at 32-33; R.R. at 379a-380a.8 For these
reasons, the Trial Court did not err in holding that the County was not entitled to




       8
          The County cites Stanton v. Lackawanna Energy, Ltd., 951 A.2d 1181 (Pa. Super. 2008),
to support its argument that the area where the gate was located was undeveloped. However, we
do not find this case persuasive. Stanton involved a gate that guarded an access road. The Superior
Court found that this gate was on land that was not vastly altered from its original state, was in
place to prevent dumpers and vandals, and was not subject to ongoing maintenance. For these
reasons the Superior Court held that these facts did not constitute a sufficient improvement to
remove the land from the protection of the RULWA. Stanton, 951 A.2d at 1187.
        Again, in the instant case, the gate was located in an area utilized by thousands of people,
on a paved road and was subject to periodic maintenance.




                                                 9
immunity under the RULWA. The Trial Court’s Order entering judgment in favor
of Appellee and against the County is affirmed.9



                                             __________________________________
                                             ELLEN CEISLER, Judge




       9
          Because we hold that immunity does not attach under the RULWA based on the specific
facts of this case, we need not address the County’s argument that the Trial Court erred in failing
to find immunity where Appellee failed to plead or show willful or malicious misconduct on the
part of County.


                                               10
          IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Esther James                      :
                                  :
     v.                           : No. 46 C.D. 2018
                                  :
County of Bucks,                  :
                   Appellant      :

                                ORDER


     AND NOW, this 21st day of December, 2018, the Order of the Court of
Common Pleas of Bucks County, dated March 9, 2018, is hereby AFFIRMED.



                                  __________________________________
                                  ELLEN CEISLER, Judge
