After issuing a controversial 2010 decision which dramatically increased the potential exposure of landowners for injuries to recreational users – and possibly to trespassers as well – the Rhode Island Supreme Court recently declined to revisit the issues when the case came before the Court for a second time. In doing so, however, the Court offered a glimmer of hope to landowners, hinting that it may be willing to reconsider its position in the future.
The initial decision in Berman v. Sitrin, 991 A.2d 1038 (R.I. 2010) (“Berman I”), reflects a sense of shock at the tragic circumstances of the case, augmented by the Court’s long-simmering frustration with the legislators for ignoring repeated invitations to address perceived flaws in the Recreational Use Statute, R.I. Gen. Laws § 32-6-1 et seq. (“the RUS”).
The case arose out of the latest in a series of accidents involving the “Cliff Walk” in Newport, Rhode Island. A public easement over private lands, the Cliff Walk is controlled by the City of Newport. It is considered one of the top tourist attractions in the state, offering breathtaking views of both the rocky Atlantic coastline and many of Newport's famous gilded mansions. As a result of erosion, however, the area along the edge of the cliffs immediately adjacent to the Cliff Walk is dangerously unstable, which had led to serious accidents – at least two of them fatal – in the past. Mistaking an erosion trail caused by runoff for a footpath, the newlywed plaintiffs stepped off the paved walkway. The ground gave way and Mr. Berman fell nearly thirty feet down the cliff face to the rocks below, suffering a spinal cord injury that rendered him a quadriplegic.
The plaintiffs filed negligence claims against several public and private entities, including the City of Newport and the State of Rhode Island. The lower court granted summary judgment to the City (but not the State) on the grounds that it was shielded from liability by the Recreational Use Statute.
Enacted in 1978, the RUS – like its counterparts in many other states – encourages landowners and others in control of premises to make their property available to the public, free of charge, for recreational purposes. It does so by limiting their exposure to lawsuits for injuries resulting from hazards on their property, immunizing them from liability except in cases where the owner engages in “the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering the user's peril.” See § 32-6-5(a)(1). This statutory language mirrors well-established Rhode Island case law describing the limited duty owed by landowners to trespassers, effectively treating recreational users as if they were trespassers.
In 1996, the Legislature amended the RUS, expanding the statutory definition of “owners” to include the state and municipalities. Over the ensuing years, the Court openly criticized this amendment. It repeatedly voiced its displeasure with a statutory framework which treated members of the public visiting state and municipal parks and recreational areas as if they were trespassers, and urged the General Assembly to revisit the statute.
When these complaints fell on deaf ears, a divided Court took matters into its own hands in 2010, issuing Berman I. Reversing the lower court’s summary judgment ruling, the majority reinterpreted the RUS to avoid the “absurd” result of shielding the City from liability for knowingly exposing “innocent tourists” to “grave dangers” associated with the Cliff Walk. The justices refused to construe the statute as “an invitation to ignore known hazards while profiting from this major tourist attraction where such danger is present.”
Ignoring the line of trespasser cases from which the statutory language was drawn, the Court rejected the City’s contention that the statutory notice requirement – limiting liability to circumstances where the defendant’s conduct occurred “after discovering the user’s peril” – should be interpreted to require actual knowledge that the specific plaintiff had placed himself in a hazardous situation. Instead, the Court considered it sufficient that the City was aware of other incidents in the past. Because it had “actual or constructive knowledge of the perilous circumstances,” the City was deemed to owe “an affirmative duty to take reasonable steps to warn and shield unsuspecting visitors … against these known and grave dangers in some reasonable manner.”
Turning to the second element of the exception from immunity set forth in the RUS – i.e., whether the City’s failure to guard or warn against the risk was “willful or malicious” – the Court held that “a fact-finder reasonably couldfind that … the city voluntarily and intentionally failed to guard against the dangerous condition, knowing that there existed a strong likelihood that a visitor to the Cliff Walk would suffer serious injury or death.” Having concluded that a jury could make a finding which would deprive the City of the protection of the RUS, the Court then proceeded to “declare that the immunity provided by the RUS is not available to the City of Newport, in the context of the Cliff Walk” – effectively taking the factual question out of the jury’s hands and depriving the City of the defense altogether.
The Court remanded the case to allow the jury to decide whether the City should be held liable for negligence. If offered no explanation as to how the City could not be found liable for negligence under the circumstances, since the Court had already concluded as a matter of law that the City owed the plaintiffs a duty of care, and that it had willfully or maliciously breached that duty.
The Berman I decision is controversial, both among legal commentators and the justices themselves (two of whom, including the Chief Justice, dissented from the portion of the decision regarding the interpretation and application of the RUS). By interpreting the standards of notice and willfulness to be essentially coextensive with traditional negligence standards, the Court has effectively gutted the statute. As interpreted by the Court, the RUS grants landowners immunity from liability for negligence, but deprives them of that immunity whenever they have actual or constructive notice of a dangerous condition and do nothing to guard or warn against it. Though it was motivated in part by outrage that the City had done nothing to address longstanding concerns about the safety of one of the state’s premier tourist attractions, nothing in the opinion limits its application to state or municipal actors. Thus, it significantly diminishes the statutory protection from liability for alllandowners, public and private. Finally, the Court’s endorsement of broad standards of notice and willfulness could have impact in other areas – especially claims against landowners for injuries sustained by trespassers.
After Berman I was issued, the City – perhaps unsurprisingly – elected to settle the plaintiffs’ claims against it. The negligence claim against the State proceeded to trial, however. The lower court declined to permit the State to claim immunity under the RUS, but the jury nevertheless found that the State was not liable. The plaintiffs appealed, and the State filed a cross-appeal. Despite the fact that it had prevailed at trial, the State urged the Supreme Court to reconsider its earlier decision regarding the application of the RUS.
In Berman v. Sitrin, 101 A.3d 1251 (R.I. 2014) (“Berman II”), the Court rejected the arguments raised in the plaintiffs’ appeal, and then refused the State’s invitation to revisit the RUS, finding such an analysis unnecessary in light of its affirmance of the verdict in favor of the State. In doing so, however, the Court went out of its way to acknowledge that its “decision in Berman I is not without its critics.” While declining “on this occasion” to “revisit the wisdom of our prior decision” and refusing to “speculate … as to whether the state should have been afforded immunity under the RUS,” the Court did not expressly endorse its earlier decision or foreclose further analysis of those issues. To the contrary, it left those questions to be addressed “another day in another case.” It also took pains to caution against reading the prior decision too broadly, stating: “we cannot stress enough that whatever is to be gleaned from Berman I, on both the case at bar and beyond, is necessarily constrained by the posture in which we rendered our decision: review of the grant of summary judgment.”
It is disappointing that the Court chose not to seize the opportunity in Berman II to revisit some of the more dubious aspects of Berman I and clarify the impact of that flawed decision on premises liability in the recreational use context and beyond. However, the more recent decision strongly hints that the Court harbors reservations regarding the validity and potential ramifications of Berman I. Further developments – judicial or legislative – seem likely to follow.