finding that an implied contract to indemnify cannot come into existence until the party seeking indemnity has been found liable to the plaintiff and has discharged the obligation arising from the liability
How later courts described this case
- finding that an implied contract to indemnify cannot come into existence until the party seeking indemnity has been found liable to the plaintiff and has discharged the obligation arising from the liability
- stating that the legislature intended to limit buildings, structures, machinery, or equipment to “ancillary structures attached to open space lands made available for recreation”
- finding “no reason to re-evaluate” case law holding “that income tax consequences are not considered in fixing damages for the determination of decedent’s earning capacity”
- holding that immunity does not extend to owner of public indoor swimming pool
Written by the judges who cited it.
Distinguished
Distinguished by Walsh v. City of Philadelphia, 126 Pa. Commw. 27 (1989)
Despite this relatively broad language, we believe that Rivera is factually distinguishable from the instant matter, and, accordingly, not dispositive.
The opinion
McDERMOTT, Justice,
dissenting.
I join the Chief Justice in his reasons for dissent. As the majority notes, the Act granting immunity when land and facilities are offered free for charitable, recreational and instructional purposes was passed by the legislature without comment. The majority then offers the comments of the drafters of the model Recreation Use Act as a basis for their holding. The essence of that commentary and general purpose is in the following:
... [I]n those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.
In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return.
The Council of State Governments, Public Recreation on Private Lands: Limitations of Liability, XXIV Suggested State Legislation 150, 150 (1965).
The majority however, eschewing the clear intent of the General Assembly, ignores the obvious fact that the legisla *34 ture, without comment, in plain words and intention, did not mean to exclude those who cannot walk out their back door through leafy lanes to shining lakes, from the charity of those who offer indoor swimming pools in the hot and dusty city. The argument that they are excluded because they are easily supervised is ludicrous.
There is unexpected danger inherent in all recreational activities, whether it be the wild danger of the outback or a slip on a marble floor. The whole concept of immunity is the presence of danger. To say that a pond, lake, quarry, brook or swimming pool across a city line is immune when offered free to the public, but the same in an urban area is not, however comparable in size and danger, because it has a roof, is simply whimsical. The legislature balanced danger against a benefit to a great number of people; allowing a use of facilities with immunity from liability, great and small, so that many could have, what the possible consequences for an injury to one, would make improvident to give to any.
NIX, C.J., and ZAPPALA, J., join this dissenting opinion.