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KENTUCKY COURT OF APPEALS BROADLY INTERPRETS THE KENTUCKY RECREATIONAL USE STATUTE TO PROTECT A LAND OWNER
In Kelli Poore v. 21st Century Parks, Inc., _____ S.W. 3d ______ (Ky. App. 2020), 2020 WL 4498825, the Kentucky Court of Appeals broadly interpreted and applied the Kentucky Recreational Use Statute, KRS 411.190. All 50 states have adopted some form of a recreational use statute. The stated purpose of the Kentucky statute is to encourage owners of land to make land and water areas available to the public for recreational use at no charge by limiting their potential liability to persons entering onto the land for such purposes. The statute expressly excludes tort immunity from liability arising from the landowner’s willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.
In this case a husband and wife accessed Floyds Fork in Jefferson County, Kentucky for purposes of a kayaking trip via one of four inter-connected parks that make up the Parklands. Sewell & Neal, PLLC represented 21st Century Parks, Inc., a nonprofit corporation that owns and operates the Parklands. While on a remote section of Floyds Fork, the man suffered a medical emergency and subsequently died. Because of a lack of access there was a delay in emergency medical personnel reaching the couple. His estate and widow brought suit against the park alleging among other things that the park had acted with willful disregard by failing to train its staff in how to handle medical emergencies and in failing to have a plan to facilitate prompt rescue of park patrons who became disabled. Arguments made by the claimants and rejected by the Court of Appeals included that the Recreational Use Statute was unconstitutional, that it didn’t apply since the alleged dangerous condition was not premises-based, and that the statute was inapplicable since the man was stricken while on a state-owned waterway as opposed to land owned or managed by the park.
The Kentucky Supreme Court declined to review this decision on a motion for discretionary review. In doing so it did not alter the Court of Appeal’s designation that its opinion be published. Accordingly, this opinion can now be cited as precedent by landowners to protect them from creative pleadings and legal theories asserted by persons who come on to their land for recreational use at no charge and are injured.
Prepared by Peter Sewell