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September 2004

Holding Municipalities Responsible for Improper Installation and Maintenance of Your Recreation Products

As published on (9/16/04).

Holding Municipalities Responsible for Improper Installation and
Maintenance of Your Recreation Products

By David N. Lutz and
Ryan L. Nilsen
Bowman and Brooke LLP

Cities and municipalities buy, install and maintain various products, including playground equipment in public parks. For a manufacturer of playground equipment installed and maintained by municipalities, a reasonable settlement or success at trial may depend on the ability to defeat immunity claims and require the municipal co-defendant to take responsibility for its conduct.

A. History of Governmental Immunity

Under common law, the government is immune from liability for certain torts because of various policy considerations. Most states have adopted statutes codifying this immunity of local government entities from tort liability for any claim of failure to exercise or perform a discretionary function or duty, whether or not the discretion is abused. Statutory immunity shields conduct of a policy-making nature "involving social, political or economical considerations," which are crucial to governing and policy judgments. Many states also have additional specific immunity statutes, including recreational use statutes. Municipalities may have immunity if the acts: 1) are discretionary, or 2) the acts fall within specific statutory immunity. As a playground equipment manufacturer, you must defeat both allegations.

B. Defeating Immunity By Showing That the Government Acts Are Operational, Not Discretionary

1. Discretionary vs. Operational (Ministerial) Acts

Most state immunity statutes distinguish between traditional governmental (discretionary) acts and ministerial (operational) acts, providing immunity only for discretionary acts of governance. Discretionary acts enjoy immunity to preserve the integrity of government by insuring that each coordinate branch of government may freely make basic policy decisions, unfettered by second-guessing by litigants in a lawsuit. Discretionary acts, by definition, involve a basic policy determination balancing social, political or economic considerations, such as how to spend money. Merely professional or scientific judgments and conduct flowing from a governmental entity's failure or refusal to enact a policy are operational and not immune. The municipality has the burden of proof to show that its actions were discretionary, not operational.

To defeat immunity, you must argue that the municipality's actions were operational. The reported case law does not provide a uniform definition of discretionary acts and the difference between discretionary and operational acts can be subtle. One court found that the decision whether to plow a particular road or whether to plow on a particular date is discretionary because it is made at the planning level, but the job of plowing itself is an operational function because it is simple and definite. Decisions about whether to close an ice rink on weekends because of lack of money, failing to warn of the presence of a drainage ditch outside recognized right of ways, and deciding whether to plow or sand streets are discretionary. Examples of operational acts include failure to maintain a beach, warn of dangerous conditions and failure to place a guardrail on a dangerous road.

Courts have, however, found circumstances involving safety of students, particularly school children on school premises, to not involve an exercise of "discretionary duty." There may be a distinction between the actual decision and carrying it out and a lawsuit involving recreational equipment could also involve both discretionary and operational (ministerial) acts. For example, establishing a playground supervision policy may be a discretionary act, whereas the actual supervision of the playground could be an operational act.

2. How to Persuade the Court that the Acts Were Operational (Ministerial) and Not Discretionary.

Whether a planning decision is immune depends on whether the decision at issue in your lawsuit legitimately involved the balancing of public policy considerations in formulating policy. To persuade the court that the municipality's actions were operational (ministerial) and not discretionary, therefore, you should show that the possibly negligent conduct at issue is:

•1) Not about politics or policy. De-emphasize budgetary, social, political and policy considerations underlying the municipality's action. Instead, characterize the decision or conduct as "merely professional or scientific judgment" and stress that the conduct arose from the day to day operation of government. If the actual decision was made by an employee whose job functions were primarily operational rather than discretionary (such as a product modification by an installer), the action seems less discretionary.

•2) Not Expressly or Impliedly Mandated by Law or Proprietary in Nature. If the municipality is engaged in an tortious activity that is not expressly or impliedly mandated or authorized by constitution, statute, or other law, the municipality's actions may be discretionary. If the activity is conducted primarily to produce a pecuniary profit for the state, then the municipality is not immune.

•3) Inconsistent with past conduct. If the municipality failed to articulate and apply a uniform policy and the actions instead were haphazard, or were made by individual employees, the municipality's actions look less like a discretionary policy decision. Try to develop evidence that the municipality acted inconsistently depending on the employee or the site involved.

•4) Government Exercise of Professional Judgment. If the Municipality installed or maintained your equipment improperly, develop evidence that the public entity substituted its own judgment for your judgment about design, maintenance or safety, such as by disregarding your instructions or modifying your product.

•5) Actual implementation of the decision rather than the decision itself. The decision is more likely than its implementation to be discretionary than its implementation.

C. Defeating Immunity Under Recreational Use Statutes

Many states also have specific parks and recreational use statutes, which confer governmental immunity specifically with respect to the construction, operation and maintenance of parks and recreational facilities. Such statutes grant landowners (including the government) broad immunity from liability for personal injuries suffered by recreational landusers.

Generally, under recreational immunity statutes, a municipality is immune from liability unless its conduct "would entitle a trespasser to damages against a private person." Thus, you must meet the following test under Restatement of Torts § 335, which many states have adopted:

•1) the condition created or maintained by the municipality;

•2) the municipality has knowledge that it is likely to cause death or serious bodily harm,

•3) it is of such a nature that he has reason to believe that people will not discover it, and

•4) the municipality failed to exercise reasonable care to warn of the condition and the risk involved.

You (or the plaintiff) have the burden to prove all four elements to defeat immunity. This is in contrast to sovereign immunity, on which the municipality bears the burden of proof.

1. Condition Created or Maintained by the Municipality

You should be able to show that the municipality created or maintained the condition at issue if it installed, maintained, repaired, serviced or supervised your product (or failed to do so). You must show that the government created or maintained the condition, not necessarily your product. If the government entity did not install your product, but arguably created a condition involving your product, such as the surface beneath your playground or the depth of the pool beneath your water slide, you have a good argument that this element is met where the government entity merely maintains a naturally occurring condition, even though the government entity may not have "created" the condition.

2. The Municipality's Knowledge that the Condition is Likely to Cause Serious Bodily Harm

The most difficult element often involves showing that the municipality had knowledge that the condition was "likely to cause death or serious bodily harm." Most reported case law on this element has found immunity.

Whether the municipality had knowledge may be a matter of definition. Actual knowledge standard is "positive, in contrast to imputed or inferred, knowledge of a fact," including "express information." Some case law will support this definition. You should argue for a constructive knowledge ("knew or should have known") standard, for which Restatement § 335 provides support. Various states have adopted the constructive knowledge test. You will obviously have an easier time imputing to the municipality the information in your warnings under a constructive knowledge standard.

You can show constructive knowledge through various information available to the municipality, including your warnings. You can argue that the municipality knew or should have known the information you (and others) provided, whether or not its employees read or understood it. Your written instructions undoubtedly warned about proper installation and maintenance of your products and you might gain admissions in depositions that the municipality received (and ideally read) your warnings.

You must show knowledge that the dangerous condition has an inherently dangerous propensity to cause injuries. This can be a difficult standard to meet. For example, one Court found that using an allegedly insufficient depth of bark on a playground as a shock-absorbing surface could not be characterized as inherently dangerous because such a condition is "not the type of condition likely to cause death or serious bodily harm." If the municipality failed to follow your instructions and you warned of serious consequences of failure to do so, however, you may have a good argument for constructive knowledge.

3. The Condition Was Not Readily Discoverable by Plaintiff

You must also show that the condition is "hidden" or otherwise non-obvious. If "a brief inspection would have revealed the condition, it is not concealed" and trespassers are required to be alert to conditions existing on the land. The more obvious the condition in your case, the worse your immunity argument against the city (although the better your assumption of risk/comparative fault defense against plaintiff). Conditions that are apparent, thus prompting immunity, include a raised sidewalk joint, a railing stood up against a wall, a barrel that was partially visible and a common earthen drainage ditch.

4. The Municipality's Failure to Exercise Reasonable Care

Under Restatement (2d) of Torts § 335, a landowner does not have a duty to eliminate artificial conditions from the land, but merely must "exercise reasonable care to warn such trespasser of the condition and risk involved." Although there are certain actions that a municipality need not undertake, it must exercise reasonable care with respect to duties that it does undertake. Where a municipality fails to follow your instructions for installing your product, repairs your product improperly, alters your product or fails to follow your instructions for repair or maintenance, you should have a good argument of failure to exercise reasonable care.

D. Conclusion

If your governmental co-defendant is entitled to immunity, you might bear its liability, even if it failed to follow your instructions for proper installation and maintenance of your product. You can keep the municipality in the case by showing that the municipality's actions were operational, not discretionary, and by creating a fact issue as to the four elements of Restatement (Second) of Torts, § 335. Your ability to do so may significantly affect your verdict or settlement. 

[1]David Lutz is a lawyer at Bowman and Brooke, a national law firm specializing in product liability defense and other complex civil litigation. For citations of cases and statutes, please email him at

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