Strollers on Newport’s Cliff Walk pass beaten but sometimes dangerous paths that lead down to the Atlantic Ocean. Fencing installed at particularly treacherous points along the 3 1/2-mile walk has been trampled by people eager to get closer to the promontory’s edge for a more dramatic view.
In August 2000, a honeymooning tourist from Brooklyn, N.Y., walked down a beaten path shrouded by tall vegetation and suffered injuries that left him a quadriplegic when the ground crumbled and he fell 29 feet to the rocks below.
He filed a negligence lawsuit against the city, state and Newport’s Cliff Walk Commission seeking more than $30 million in damages.
His was among several personal-injury lawsuits that have been filed against the state or its municipalities for a wide range of alleged negligence. The day after his family moved to Rhode Island, a 9-year-old boy rode his bicycle off a 20-foot cliff at Fort Adams State Park in Newport where there’s no fencing. His parents sued the state.
A woman tripped and fell while trying to avoid a swarm of bees at a Providence park. She sued, claiming the city should have taken care of the bees or posted warnings about their risk.
A man said he was knocked unconscious when a rotted tree limb snapped at 2 in the morning while he was walking his dogs along a path at Roger Williams Park. He sued the city, too.
The lawsuits raise the question of where to draw the line between personal responsibility for one’s own safety and public liability, and how government can maintain safety –– and at what cost–– in areas designated for public enjoyment.
They also called into question the limits and protections of the state’s Recreational Use Statute, a law that has been on the books since 1978 that encourages landowners with open space to make their property free and open to the public for recreational purposes. Property owners have no duty of care to the public other than to refrain from “willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity after discovering the user’s peril,” the statute says.
Before 1996, it only applied to private property owners. Since then, it has provided liability protection to the state and its municipalities as well. Now there’s a move afoot to amend the law.
Competing bills have been introduced in the General Assembly that deal with the limitations and protections of the Recreational Use Statute. One, backed by a group of personal-injury lawyers, would force the state and its municipalities to be more accountable for maintaining recreational areas — but at a price tag that may be prohibitive.
The organization that sells liability coverage to communities fears it could be hit by higher payouts in personal injury lawsuits if that bill goes through. It’s proposed a legislative package that would blunt the effect of any large judgments.
All of this is occurring against the backdrop of three Supreme Court rulings that have criticized the Recreational Use Statute as being too protective of government interests.
Sen. Michael J. McCaffrey, D-Warwick, has introduced the bill that is being backed by the personal-injury lawyers. The bill would lower the threshold for someone to prevail in winning judgments against governmental entities. To win a case, injured parties would simply have to prove that the state or one of its municipalities has been negligent in failing to maintain a recreation area or warn against dangers. Under the current law, there is a lesser duty of care owed to recreational users under the “willful and malicious” standard, making it harder to win such cases.
McCaffrey’s bill would keep the protections afforded to the private property owners who open their land to hunters, hikers, cross-country skiers and other recreation seekers. But the liability protections afforded during the last 15 years under the Recreational Use Statute to the state and its 39 cities and towns would no longer apply.
McCaffrey, who handles personal-injury cases, says he introduced the legislation on behalf of the Rhode Island Association for Justice, which represents about 350 personal-injury lawyers.
“It’s a safety issue. When you open up to the public recreation areas in the state, such as Colt State Park and the Cliff Walk, the public has, I think, an expectation of using the recreation areas with the expectation that they are safe to use. If there are safety problems, they should be addressed,” association president Michael St. Pierre, says.
But Thomas Dwyer, president and executive director of the Rhode Island Interlocal Risk Management Trust, which insures most Rhode Island cities and towns, says: “The current immunities are there in the law to let the public enjoy the land and the parks in their natural state.” If McCaffrey’s bill goes through, he predicts, many more people who suffer injuries at parks, beaches and other recreational venues will bring lawsuits against the cash-strapped cities and towns, as well as the state. It will also “definitely” lead to hikes in municipal insurance premiums, Dwyer predicts.
As a result, Dwyer says, certain popular venues may have to be closed since, he says, there’s no public money to add safety patrols or install tall fencing and signage at every potential point of danger. “We’d have to say to the municipalities, ‘really step up the maintenance of these places or close them down. You’re just opening us to a whole new level of risk out there.’ ”
In an attempt to avoid that, the Interlocal Trust has submitted bills through Rep. Michael Marcello, D-Scituate, that would add new layers of protection for governmental entities. One measure would, in most cases, cap at $250,000 the amount of damages that could be collected from the state, its municipalities and their employees who, in the line of work, are sued in negligence cases. Another would bar pre-verdict interest from being added to judgments in personal-injury cases where government entities and employees are sued. Currently, interest on civil judgments can now sometimes amount to 50 percent or more of a large judgment because it is calculated from the date of an injury or the filing of a lawsuit or claim for damages.
The Marcello and McCaffrey bills will be hashed out in the aftermath of a case that ended two weeks ago in Newport County Superior Court involving Simcha Berman, whose fall from the Cliff walk left him a quadriplegic. Berman claimed that both the state and the city were liable for his injuries –– because there was nothing to warn him that he was venturing onto unstable terrain. The governmental entities, which were responsible for maintaining the famed walk — a major state tourist attraction –– should have erected fencing or signage to alert unsuspecting visitors that it was dangerous to leave the paved walkway, his lawyers argued.
The city, through the Interlocal Trust, settled for $2 million the first day of the trial without admitting any liability. Jurors decided that the state was not liable.
Dwyer says that he’ll be meeting with Newport officials to discuss what the city can do to better promote public safety along the walk. More signs or fencing would be prudent “risk management,” he says. But he is quick to add: “We do not want to see barriers coming up to detract from the natural beauty that exists there. You don’t go to the Grand Canyon to look at walls but to look at the grandeur that exists there.” “How far must we go as a society to protect us from ourselves? The dilemma is not unlike those faced by our National Park Service in maintaining trails and paths in our great national parks,” Dwyer says.
In the Berman trial, Assistant Attorney General James R. Lee argued that in Rhode Island, “there is no duty to warn of an open and obvious danger.” People need to be held responsible for their own injuries if they decide to do something foolish in the face of peril, he said.
But the Supreme Court, in overruling a Superior Court decision and giving the green light a year ago to Berman to proceed to trial with his lawsuit, chided the City of Newport for failing to adequately protect the public at the Cliff Walk.
“At the time of Simcha’s injury, the dangers surrounding the Cliff Walk were anything but unknown and tragedies such as this have occurred on multiple occasions,” wrote Justice Maureen McKenna Goldberg. “It is beyond dispute that for many years, the city has had actual notice of the dangerous instability of the ground underneath the Cliff Walk and its eroding edge” but has failed to correct the dangerous condition.
“This failure places the members of the public whom the city invites to visit the Cliff Walk in a position of peril,” she said.
In a separate opinion in the case, Chief Justice Paul A. Suttell and Justice William P. Robinson III were equally blunt: Right now, they said, the Recreational Use Statute “acts as a disincentive for the city to implement any safety measures whatsoever” to protect unsuspecting tourists. “We once again urge the General Assembly to address the scope of the statute.”
The court has been urging the legislature to do something to amend the statute for five years now. In 2006, it reluctantly threw out a lawsuit brought by the parents of the boy who rode his bike off a 20-foot cliff at Fort Adams State Park and was badly injured.
The justices said “our empathy for that young man is very great” and said they were troubled that the wording of the Recreational Statute forced them to deny the family a trial. “While we are cognizant of the fact that our judicial role is to interpret and apply statutes and not to legislate, it is our view that it is entirely appropriate for us to suggest that the General Assembly (whose role it is to legislate) focus upon the result in this case,” wrote Justice Robinson.
“Perhaps the time has come for the General Assembly to revisit the provisions of the Recreational Use Statute, especially where public parks and similar public recreational areas are concerned,” the court said.
In another opinion written six months later –– the one involving the woman who sued the City of Providence over the bees –– then-Chief Justice Frank Williams said: “We find it particularly difficult to hold the state or a municipality harmless for injuries occurring on public property to which our citizens are invited, particularly when the state and its municipalities are presumptively better able to bear the burden of damages than are most users of recreational facilities. We are additionally concerned about the protection of this state’s citizens, given that the statutory scheme does nothing to motivate governmental landowners to make their properties safe.”
McCaffrey says that he does not believe his proposed change to the Recreational Use Statute will increase potential liability for either the state or its cities and towns. Even if it’s easier for an injured person to pursue a lawsuit, he said, the state and its municipalities are usually protected by a $100,000 cap on damages –– unless the Assembly votes “by special act” to allow someone to sue for more.
But Dwyer and Marc DeSisto, the lawyer for the Interlocal Trust, disagree. “Attorneys for plaintiffs routinely avoid the restrictions of the cap by suing employees in their individual capacities ––as well as the state and municipalities,” says DeSisto, who was representing the City of Newport in the Berman case where the city’s finance director was a defendant. And the state Supreme Court has ruled that the cap does not apply to employees.
The $100,000 cap also doesn’t apply in certain other cases against the state or a municipality. In a trial scheduled to open May 9 in Superior Court, a judge has recently ruled that the cap does not apply to a man seeking more than $10 million in damages from the state for the broken neck he suffered from diving head-first into shallow water at a pond that had no lifeguard at the World War II Memorial State Park in Woonsocket. Brett Roy, who was 29 at the time of his accident, is now a quadriplegic. The cost of his future care is estimated to approach $10 million, the attorney general’s office says.
KEY POINTSPending legislation
S 0367 Would continue to afford current legal protections for private landowners who open up their land for free to the public for recreational use but would remove the state and municipalities from liability protections afforded by the Recreational Use Statute. Main sponsor: Sen. Michael J. McCaffrey, D-Warwick.
H 5457 Would change the law to provide that interest on court judgments accrue from the date a civil lawsuit is filed, not the date of an injury. Interest is set by state law at 12 percent a year. Main Sponsor: Rep. Michael Marcello, D-Scituate, a lawyer.
H 5643 Would prohibit the award of pre-verdict interest on any judgment against the state, municipalities or any of their employees while performing their jobs. Interest would start to accrue four weeks after a judgment is entered. Main Sponsor: Rep. Marcello.
H 5670 Would change the law to protect the state and its municipalities from having to pay large damage awards in cases where other defendants are found to be more liable but have no money to pay. Rhode Island is one of about a half dozen states that make each defendant in a lawsuit responsible for the entire amount of damages awarded, regardless of their relative degree of responsibility. This bill would make government entities and their employees responsible for only their proportionate share of a judgment unless found to be at least 25 percent responsible for an injury. Main Sponsor: Rep. Marcello.
H 5674 Would raise the statutory cap for damages against the state and its municipalities from $100,000 to $250,000 and make the cap also apply to governmental and fire district employees who are sued in their individual capacities. The cap would not apply if the state or municipality charged admission for an event or activity in a for-profit venture. Main Sponsor: Rep. Marcello.
A number of lawsuits have been brought against the State of Rhode Island and municipalities over injuries and deaths that have occurred at recreational areas. Because of the broad protections historically provided to governmental entities in such cases, most of them never reached a jury for a decision. Lawsuits Filed
Donald Bennett v. Stephen Napolitano, in his capacity as Providence city treasurer: In 1994, Bennett was knocked unconscious by a large tree limb that fell while he was walking his dogs in Roger Williams Park late at night when the park was closed. The tree limb appeared healthy but was rotted from the inside. The case was thrown out before trial. The state Supreme Court ruled that Bennett was a trespasser and that the defendant’s only duty was to refrain from willfully and wantonly causing injury. A city ordinance prohibited admission to the park after closing time.
Rose Brindamour v. The City of Warwick by and through its Treasurer, John Martin: Brindamour’s daughter, Colleen Marie, died when the car in which she was a passengerslammed head-on into a tree in City Park in 1993, hours after it was closed for the night. Rose Brindamour claimed the city was negligent in failing to maintain the park and its roadways in a safe manner. The case was thrown out before trial. The state Supreme Court upheld the dismissal.
William G. and Mary H. Cain v. Joel Johnson, Treasurer of the City of Newport; the City of Newport, the State of Rhode Island and Salve Regina University: The Cains’ son, Michael, a 21-year-old honors student at Bryant College, fell to his death in 1991 off the Cliff Walk. Cain, of Barrington, was walking with two friends at 2 a.m. when he stepped way from the pavement onto a grassy area. The ground gave way and Cain fell 70 feet to the rocks below. The state Supreme Court ruled that Cain was “an undiscovered trespasser to whom the defendants owed no duty.” By city ordinance the Cliff Walk is closed, except to fishermen, from 9 pm to 6 am.
Edward O’Brien v. State of Rhode Island: In 1983, an East Providence man went to Lincoln Woods State Park and while walking, tripped over a horseshoe stake that had been embedded in the grass. He sued the state claiming it had been negligent in its maintenance of the park. The state Supreme Court allowed the case to go forward. Eleven years after his injury, O’Brien was awarded $1,000 by an arbitrator.
Virginia M. and Robert C. Hanley v. State of Rhode Island: The couple sued the state after Virginia Hanley tripped on a raised edge of asphalt at Fisherman’s Memorial State Park in Narragansett, where they’d taken their daughters camping in 1998. Mrs. Hanley suffered arm and shoulder injuries. The state Supreme Court upheld a lower court decision dismissing the lawsuit based on the protections afforded by the Recreational Use Statute, even though the state had charged a fee to camp.
Irina Smiler v. Stephen T. Napolitano, in his capacity as Treasurer of the City of Providence: In August 2000, while taking a walk in Lippitt Park, Irina Smiler was attacked by a swarm of bees, ran and fell. Before trial, the state Supreme Court threw out the case, saying the the city did not know the bees were at that park on the day in question and therefore had not yet discovered Smiler’s peril.
Freddie Cruz Sr. et als v. City of Providence: Two boys riding a bicycle in Davis Park –– one sitting on the handlebars –– ran into a chain that blocked their path, throwing them from the bike. Both were injured. The boys’ family sued the city, alleging negligence in allowing chains to be put up and taken down by various individuals without any regular schedule or notice. The Supreme Court upheld a lower court ruling throwing out the suit.
Simcha and Sarah Berman v. The State of Rhode Island, Laura Sitrin, in her capacity as Finance Director for the the City of Newport, the Cliff Walk Commission, The Preservation Society of Newport: In August 2000, 23-year-old Simcha Berman, of Brooklyn, N.Y., fell from the Cliff Walk, an accident that left him a quadriplegic. The case against the Preservation Society was dismissed before trial but the state Supreme Court, in a 3-to-2 decision, allowed the case to proceed against the others. Berman received a $2 million settlement from the city. A jury decided the state was not liable.
Raymond and Doris Lacey v. Jan Reitsma, in his capacity as director of the Department of Environmental Management, and the State of Rhode Island: The parents of 9-year-old Raymond “RJ” Lacey Jr. sued after their son was seriously injured when he rode his bicycle off a cliff at Fort Adams State Park in Newport in 2000. He suffered permanent and severe injuries. The state Supreme Court tossed out the lawsuit, but the court said it was troubled by its decision and urged the General Assembly to amend the Recreational Use Statute. As in the Berman case, the plaintiffs had argued that the state was negligent for failing to put up a guard rail, wall or fencing to prevent people from falling off the cliff.