                                                           Supreme Court

                                                           No. 2013-280-Appeal.
                                                           (WC 12-486)


      Kathleen Carlson                :

              v.                      :

Town of South Kingstown et al.        :




        NOTICE: This opinion is subject to formal revision before publication in
        the Rhode Island Reporter. Readers are requested to notify the Opinion
        Analyst, Supreme Court of Rhode Island, 250 Benefit Street, Providence,
        Rhode Island 02903, at Tel. 222-3258 of any typographical or other
        formal errors in order that corrections may be made before the opinion is
        published.
                                                               Supreme Court

                                                               No. 2013-280-Appeal.
                                                               (WC 12-486)


             Kathleen Carlson                :

                    v.                       :

     Town of South Kingstown et al.          :


             Present: Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

                                         OPINION

       Justice Flaherty, for the Court. In this case, we are once again asked to revisit the

scope and applicability of G.L. 1956 chapter 6 of title 32, the Recreational Use Statute (RUS).

The plaintiff, Kathleen Carlson, appeals from summary judgment entered in Washington County

Superior Court in favor of the defendant, the town of South Kingstown (the town). 1 The

plaintiff’s claim sounded in negligence and concerned an injury she sustained at a town-owned

park while she was a spectator at a little league baseball game. This appeal came before the

Supreme Court for argument on February 4, 2015, pursuant to an order directing the parties to

show cause why the issues raised in the appeal should not be summarily decided. After hearing

argument and examining the memoranda filed by the parties, we conclude that cause has not

been shown and we shall proceed to decide the appeal at this time. For the reasons set forth in

this opinion, we affirm the judgment of the Superior Court.



1
  The plaintiff also named South Kingstown Little League, Inc. (the league) as a defendant in the
suit, but this appeal concerns only the town of South Kingstown. The Superior Court entered
summary judgment in favor of the league while this appeal was pending, and plaintiff has
appealed that judgment separately.


                                              -1-
                                                 I

                                        Facts and Travel

        On July 28, 2010, plaintiff attended her son’s little league baseball game at Tuckertown

Park in the Wakefield section of South Kingstown. The game was a part of the schedule of

South Kingstown Little League, Inc., and the park and field were owned and maintained by the

town.    Ms. Carlson would later testify by deposition that the game was the league’s

championship game, that the game was open to the general public, and that no tickets were

required to attend. The league had a permit, issued by the town, to host this game, as it did for

all its games, but the town charged no fee to use the park.           The defendant, through the

interrogatory responses and deposition testimony of Theresa Murphy, the town’s Director of

Leisure Services, said that this was in accordance with a written policy because the league was a

nonprofit sports league within the town.

        After the game had ended, plaintiff, who had been standing in the area of a set of batting

cages located just off the first-base line of the park’s lower field, walked towards the concession

stand, where she planned to meet her son. Unfortunately, on her way there, plaintiff felt her

ankle twist under her and she heard what she believed was the breaking of bones in her leg. Ms.

Carlson testified that she never fell to the ground, but “when I took a step on my right leg, I felt

my ankle fall into this little divot in the ground.” As a consequence of her stumble into the

“divot,” plaintiff broke her right leg. A witness to the injury would later testify by deposition

that this “divot” was a part of a “repetitive problem” caused by “kids waiting to get into the

batting cage, [when] they dig their cleats into the ground.” There is discrepancy in the record as

to the size and shape of the hole that caused plaintiff’s injury; plaintiff described the “divot” as

“only under two inches but I don’t really remember,” while another witness said the hole was,




                                               -2-
“6, 8 inches across, maybe a little wider than that, a good 8, 10 inches deep.” Ms. Murphy

testified that the most recent inspection of the field had been accomplished two days before the

incident and that the town had received no notice of any hazardous condition existing at the park.

The particular hole in question was filled in by defendant the day after the incident.

         It was the town’s regular policy to maintain the fields at Tuckertown Park on Mondays

and Thursdays; no reports had been received about the area of plaintiff’s accident. Asked

whether the town was aware of holes near the batting cages being a common problem, Ms.

Murphy stated, “I’m not sure it’s a common problem, but I am aware that that type of thing can

happen.” However, she admitted that it was not uncommon “to find holes in ball fields after

people have used them.” Ms. Murphy testified that, if the town had been aware of any potential

hazard, it would have had it repaired or fixed. The record is devoid of any similar incidents

causing injuries at Tuckertown Park.

         On August 6, 2012, plaintiff filed suit, alleging that defendant was “negligent in

maintaining the premises of Tuckertown Field,” resulting in plaintiff’s injury. The plaintiff, in

her interrogatory answers, said that her injury had resulted in several thousand dollars in medical

bills. 2 Discovery in the suit proceeded; depositions were taken from officials of the town and the

league, a witness to the incident, and plaintiff herself. Several months later, the town moved for

summary judgment because it believed that the RUS, barred plaintiff’s suit. 3 The plaintiff



2
    There seems to be no dispute about the extent of plaintiff’s injury.
3
    The specific section of the statute cited by the town is G.L. 1956 § 32-6-3, which reads:

         “Except as specifically recognized by or provided in § 32-6-5, an owner of land
         who either directly or indirectly invites or permits without charge any person to
         use that property for recreational purposes does not thereby:
                 “(1) Extend any assurance that the premises are safe for any purpose;
                 “(2) Confer upon that person the legal status of an invitee or licensee to
         whom a duty of care is owed; nor


                                                 -3-
objected to the motion, citing two exceptions to the RUS’s limitation on liability, § 32-6-5(a). 4

Specifically, plaintiff claimed that defendant had willfully or maliciously failed to guard or warn

against a dangerous condition on the land and that plaintiff had been charged for her access to

the park. On May 20, 2013, the motion was argued and, in a bench ruling, a justice of the

Superior Court granted summary judgment to defendant, saying, “[t]he Recreational Use Statute

is still alive and well * * * there’s no evidence here that the town was aware of this particular

hole and/or the plaintiff was facing that peril before falling into that hole.” The hearing justice

went on to say of plaintiff’s second argument, that either or both of the fees paid to the league

and the taxes paid to the town constitute an admission fee, “[those] are not, quote, charges as

contemplated under the Recreational Use Statute.” The plaintiff filed a timely appeal, and, after

a minor procedural remand, her case is properly before this Court. 5



                  “(3) Assume responsibility for or incur liability for any injury to any
         person or property caused by an act of omission of that person.”
In the preceding decade alone, we have visited this statute many times. See Pereira v. Fitzgerald,
21 A.3d 369, 373-74 (R.I. 2011); Berman v. Sitrin, 991 A.2d 1038, 1043-44 (R.I. 2010)
(Berman I); Labedz v. State, 919 A.2d 415, 416 (R.I. 2007) (mem.); Smiler v. Napolitano, 911
A.2d 1035, 1041-42 (R.I. 2006); Cruz v. City of Providence, 908 A.2d 405, 406-07 (R.I. 2006);
Lacey v. Reitsma, 899 A.2d 455, 457 (R.I. 2006); and Morales v. Town of Johnston, 895 A.2d
721, 729-32 (R.I. 2006).
4
   The provisions in § 32-6-5(a) are intended to limit the scope of the RUS’s protection from
liability, as follows:

       “Nothing in this chapter limits in any way any liability which, but for this chapter,
       otherwise exists:
               “(1) For the willful or malicious failure to guard or warn against a
       dangerous condition, use, structure, or activity after discovering the user's peril; or
               “(2) For any injury suffered in any case where the owner of land charges
       the person or persons who enter or go on the land for the recreational use
       thereof * * * .”
5
   A question was raised as to whether judgment had been properly entered and, therefore,
whether the appeal was properly before this Court. On our order, the case was remanded to the
Superior Court for formal entry of judgment in accordance with Rule 54(b) of the Superior Court
Rules of Civil Procedure, which occurred on February 14, 2014. Following this, plaintiff’s
appeal was docketed with this Court.


                                               -4-
                                                II

                                      Standard of Review

       “[T]his Court reviews a grant of summary judgment de novo.” Allstate Insurance Co. v.

Ahlquist, 59 A.3d 95, 97 (R.I. 2013) (quoting Moore v. Rhode Island Board of Governors for

Higher Education, 18 A.3d 541, 544 (R.I. 2011)). Our function is to review “the evidence in a

light most favorable to the nonmoving party, and we will affirm the judgment if we conclude that

there are no genuine issues of material fact and that the moving party is entitled to judgment as a

matter of law.” Berman v. Sitrin, 991 A.2d 1038, 1043 (R.I. 2010) (Berman I) (quoting Ouch v.

Khea, 963 A.2d 630, 632 (R.I. 2009)). 6 Although complaints alleging negligence are often fact-

intensive and therefore often not well suited for summary judgment, the question of whether a

defendant owes a duty to a plaintiff is a question of law that we review on a de novo basis.

Berard v. HCP, Inc., 64 A.3d 1215, 1218 (R.I. 2013) (citing Ouch, 963 A.2d at 633). In such a

case, where a statute touches on the question of the existence of a duty, we apply the statute’s

clear language, relying on the legislative intent to clarify any ambiguities. Berman I, 991 A.2d at

1043 (citing Kaya v. Partington, 681 A.2d 256, 260 (R.I. 1996)).

                                                III

                                           Discussion

       On appeal, plaintiff argues that it was error for the hearing justice to grant summary

judgment in favor of defendant for three reasons. First, plaintiff argues that the RUS should not

apply to the present action because she is not the type of user that the statute contemplates.

Second, plaintiff argues that the exceptions in § 32-6-5(a)(1) should apply, because there is a



6
   We shall refer to Berman v. Sitrin, 991 A.2d 1038 (R.I. 2010), as “Berman I” to distinguish it
from a more recent appeal stemming from the same facts, Berman v. Sitrin, 101 A.3d 1251,
1256-59 (R.I. 2014) (Berman II).


                                               -5-
genuine issue of fact as to whether defendant was willful or malicious in its failure to guard or

warn against the dangerous condition on the field. Lastly, plaintiff argues that the exception set

forth in § 32-6-5(a)(2) applies, either because she had paid a fee to the league or taxes to the

town and, as a result, she was charged to use the land. For the reasons set forth below, we see no

merit in plaintiff’s arguments, and it is our opinion that the result is precisely what the RUS and

this Court’s prior holdings dictate.

                           A. The Recreational Use Statute’s History

       The RUS has had a lengthy and complex history with this Court. See supra, note 3. The

RUS began as a statute promulgated in 1978 by the General Assembly for the “salutary purpose”

of “encourag[ing] private landowners to make their land free and open to the public for

recreational purposes.” Berman I, 991 A.2d at 1043. This encouragement came in the form of a

reduced duty of care; users of the land would be considered to be trespassers and the landowner

need only “refrain from willful or wanton conduct.” Id. at 1044. In 1996, the RUS was amended

and “it is clear from the unambiguous language of the 1996 amendment that the legislature

intended to include the state and municipalities among owners entitled to immunity under the

statute.” Pereira v. Fitzgerald, 21 A.3d 369, 373 (R.I. 2011) (quoting Hanley v. State, 837 A.2d

707, 712 (R.I. 2003)); Berman I, 991 A.2d at 1044 (noting that § 32-6-2(3) was amended by P.L.

1996, ch. 234, § 1). We have on a number of occasions cast a disapproving eye on this

expansion of immunity, saying, “the state and its municipalities are presumptively better able to

bear the burden of damages” than an injured plaintiff, and that “the statutory scheme does

nothing to motivate governmental landowners to make their properties safe.”             Smiler v.

Napolitano, 911 A.2d 1035, 1042 (R.I. 2006); see also Lacey v. Reitsma, 899 A.2d 455, 458

(R.I. 2006). Nonetheless, we have also been consistent in saying that this Court is not a




                                               -6-
legislative body; we are bound to apply the statute in light of both its language and our

jurisprudence.   It is true that in Berman I, 991 A.2d at 1051, a duty was imposed on a

municipality for injuries suffered by a plaintiff on land that was recreational in nature. However,

in that case, the Court was constrained to address the significance of repeated catastrophic

injuries of which the defendant municipality was clearly aware. Id.

                         B. The RUS is Implicated by Plaintiff’s Injury

       The plaintiff relies on Morales v. Town of Johnston, 895 A.2d 721, 731 (R.I. 2006), for

her argument that defendant owed a duty to her in this case because her use of Tuckertown Field

was not the type of use the RUS was meant to cover. We do not agree. In Morales, 895 A.2d at

724, the plaintiff, a Central Falls High School athlete, was injured while she was playing in a

soccer game at Johnston High School. Significantly, on the day Ms. Morales was injured, the

field was being “utilized and maintained for school-sponsored athletics.” Id. at 731. When

reviewing cases in which the RUS may apply we examine “the nature and scope of the activities

occurring on the land.” Id. In order for the RUS to apply, “the premises [must] be available to

the public for recreational purposes.” Id. Unlike the open spectator areas at Tuckertown Park

where plaintiff was injured, the field in Johnston, at least on that day, was “not open to the public

for recreational activities when Morales was injured” because no one except those associated

with either high school team was allowed in the area at that time. Id.

       Rather, we are persuaded by the argument of defendant that Pereira, 21 A.3d at 375, is on

all fours with this case. The facts in Pereira are strikingly similar to the facts here; the plaintiff

was a spectator at her grandson’s soccer game, a game that was played in a city-owned and-

managed park, she paid no fee to enter, and she injured her ankle when she fell into a hole in the

common area of that park. Id. at 370-71. In deciding Pereira, we held that Morales was




                                                -7-
“inapposite” to and “clearly distinguishable” from the case of Ms. Pereira. Id. at 375. The same

is true for Ms. Carlson. The area where plaintiff was injured, which was both away from the

field of play and in an area where, plaintiff admits, “[T]here were people around the whole of the

baseball field,” was in space which the general public was free to access for recreational use.

Therefore, it was not error for the hearing justice to apply the RUS to plaintiff’s case.

                  C. The § 32-6-5(a)(1) Exception to the RUS is Inapplicable

       Alternatively, plaintiff argues that defendant engaged in willful or malicious conduct,

mandating the application of an exception to the RUS. See § 32-6-5(a)(1). To support this

argument, plaintiff relies on Berman I, 991 A.2d at 1051, where this Court held that the city of

Newport “had an affirmative duty to take reasonable steps to warn and shield unsuspecting

visitors” to the famed Cliff Walk. Citing that case as support, plaintiff correctly states in her

brief that “the broad protections created for landowners under § 32-6-3 are not absolute.”

However, in deciding Berman I, 991 A.2d at 1052, we were of the opinion that, because of the

unique situation, where there was a “strong likelihood that a visitor to the Cliff Walk would

suffer serious injury or death,” Newport owed a duty to users of the path. In that light, a

factfinder could determine that the city intentionally or voluntarily failed to guard against future

injuries and, consequently, the requirements of the § 32-6-5(a)(1) exception were met. Berman I,

991 A.2d at 1052.

       But in the case currently before us, no such strong likelihood of injury was known to

defendant. Ms. Murphy testified that she and her department had received no notice of the hole;

otherwise, the record is silent about whether the town ever received notice of the area in which

plaintiff was injured. Of the holes that caused plaintiff’s injury, Ms. Murphy said, “I’m not sure

it’s a common problem,” but conceded, “I am aware that that type of thing can happen,” and




                                                -8-
plaintiff’s witness described similar holes as a “repetitive problem.”        In our opinion, such

evidence falls woefully short of establishing the existence of sufficient facts to show that the

town knew of the particular hole that injured plaintiff or of similar persons injured by similar

defects in the park.    The hearing justice correctly described the situation when she said,

“[T]here’s no evidence here that the town was aware of this particular hole,” and defendant did

not know that “plaintiff was facing that peril.” This is far short of the situation in Berman I, in

which the defendant municipality was “saturated with the knowledge that some feature of [its]

land presents a clear and present danger to completely innocent users * * * .” Berman I, 991

A.2d at 1054 (Flaherty, J., concurring). Therefore, we see no error in the hearing justice’s

refusal to apply the exceptions of § 32-6-5(a)(1) to plaintiff’s claim.

                        D. The § 32-6-5(a)(2) Exception Does Not Apply

       Lastly, plaintiff advocates that the exception set forth in § 32-6-5(a)(2) should apply,

because either: (1) she paid a fee to the league on her son’s behalf so that he could participate, or

(2) she paid taxes to the town which uses a part of its budget to maintain Tuckertown Park. The

exception in § 32-6-5(a)(2) says that no limitation of liability exists “[f]or any injury suffered in

any case where the owner of land charges the person or persons who enter or go on the land for

the recreational use thereof * * * .” The RUS defines a charge as “the admission price or fee

asked in return for invitation or permission to enter or go upon the land.” Section 32-6-2(1).

       With respect to this issue, we do not write on a clean slate because in the past we have

addressed what the term “charge” means in the context of the RUS. In Hanley, 837 A.2d at 714,

an injured plaintiff argued that, because she paid a camping fee at a state park in Narragansett,

she was charged for use of the land and therefore was able to sue the state for her injuries.

However, we concluded that, to qualify as a charge under § 32-6-5(a)(2) the fee must be




                                                -9-
“imposed in return for recreational use of the land.” Hanley, 837 A.2d at 714 (quoting Majeske

v. Jekyll Island State Park Authority, 433 S.E.2d 304, 305-06 (Ga. Ct. App. 1993)).

       When she was deposed, Ms. Carlson agreed that the game she went to see was open to

the public and that it was not necessary to buy a ticket to get into the park to watch the game.

The fee plaintiff paid to the league had no effect on her right to use the park or view the game;

accordingly, such a fee is not a charge to use the land as the statute contemplates. It also follows

that, despite any taxes plaintiff may have paid to the town, the payment or nonpayment of those

taxes did not affect whether she could use the park for recreation, and therefore the taxes were

not charges or fees to use the land. Indeed, plaintiff was not required to be a resident of South

Kingstown to enter Tuckertown Park. We would note that applying this “taxpayer” argument

would create a result inconsistent with common sense. This argument, applying the exception in

§ 32-6-5(a)(2) to this and similar cases, would eviscerate a municipality’s RUS protection in

every case where one of its own taxpayers was injured on its land, but not when a nonresident

was injured. The same disparity would exist between injured Rhode Island residents and injured

nonresidents where state-owned property was concerned. To interpret the statute in that way

would be to imply that the General Assembly intended such a result, but that conclusion would

be beyond absurd. When the hearing justice said, “It’s undisputed that there is no fee charged

for [plaintiff] to walk onto this field to observe her son playing,” she correctly applied the RUS

and made no error of law.

       It is our firm opinion that when the hearing justice granted the defendant’s motion for

summary judgment, she properly applied the RUS. Although we are sympathetic to the plaintiff,

who suffered great pain and monetary losses from her injuries, we are bound by the language of

the statute and guided by our past interpretations of it. A different result is only possible by




                                               - 10 -
revisiting the statute, a task, as we have said in the past, that is not for this Court, but for the

General Assembly.

                                                IV

                                           Conclusion

       For the reasons set forth above, we affirm the grant of summary judgment for the

defendant. The papers in the case may be returned to the Superior Court.




                                               - 11 -
                            RHODE ISLAND SUPREME COURT CLERK’S OFFICE

                                 Clerk’s Office Order/Opinion Cover Sheet




TITLE OF CASE:        Kathleen Carlson v. Town of South Kingstown et al.

CASE NO:              No. 2013-280-Appeal.
                      (WC 12-486)

COURT:                Supreme Court

DATE OPINION FILED: April 8, 2015

JUSTICES:             Suttell, C.J., Goldberg, Flaherty, Robinson, and Indeglia, JJ.

WRITTEN BY:           Associate Justice Francis X. Flaherty

SOURCE OF APPEAL:     Washington County Superior Court

JUDGE FROM LOWER COURT:

                      Associate Justice Kristin E. Rodgers

ATTORNEYS ON APPEAL:

                      For Plaintiff: Ronald J. Resmini, Esq.

                      For Defendant: Brian J. Clifford, Esq.
