York Haven Power Co. v. Stone

OLSZEWSKI, Judge,

concurring and dissenting.

One must always be cautious to differ when esteemed colleagues render an opinion excellently buttressed by persuasive rationale and thorough review of precedents. Nevertheless, I am obliged to so hazard today. I believe the majority has reached a technical result overlooking the policy-driven jurisprudence of the Recreational Use of Land and Water Act (RUA). Moreover, I fear today’s opinion will significantly diminish the private recreational areas heretofore publicly enjoyed by the citizens and visitors of our Commonwealth.

Our Supreme Court has repeatedly instructed us to apply the RUA as necessary to achieve the Act’s policy goals. See Mills v. Commonwealth, 534 Pa. 519, 522-26 , 633 A.2d 1115, 1117-19 (1993) (rejecting an “overly technical application of the RUA [that] would lead to inconsistent results and thwart the intended purposes of the act”); Walsh v. City of Philadelphia, 526 Pa. 227, 237-39 , 585 A.2d 445, 450-51 (1991) (refusing to apply the RUA where doing so “would be to ignore the purpose of the Act and to disregard the expectations of the users of such a facility”); Rivera v. Philadelphia Theological Seminary, 510 Pa. 1, 12-17 , 507 A.2d 1, 7-9 (1986) (refusing to apply the RUA to an indoor swimming pool because such application would contravene the statute’s purposes).

The RUA is “designed to encourage the opening up of large private land holdings for outdoor recreational use.” Rivera, 510 Pa. at 16 , 507 A.2d at 8 . It is not intended to provide blanket immunity for recreational facilities “designed with improvements that require regular maintenance to be safely used and enjoyed.” Walsh, 526 Pa. at 238 , 585 A.2d at 450 . Thus, the RUA “applies only to *1168 lands that are largely unimproved in character, and where no admission fee is charged.” Lory v. City of Philadelphia, 544 Pa. 38, 40 , 674 A.2d 673, 674 (1996) (citing Walsh, supra). The phrase “largely unimproved in character” is meant to broadly distinguish areas where RUA coverage will further the Act’s purposes from areas where it would not. The phrase is not intended to mechanistically distinguish altered landscapes from the untouched. Instead, the Act specifically includes some areas altered by human development. See, e.g., 68 P.S. 477-2(1) (expressly including ancillary “buildings, structures and machinery or equipment” in the definition of land). Even extensive human alteration does not necessarily destroy the “largely unimproved” character of an area. Land drastically altered to a new natural state may remain unimproved. See Brezinski v. County of Allegheny, 694 A.2d 388 (Pa.Cmwlth. 1997) (finding park with sculpted landscape unimproved for RUA purposes). Rather than proceed mechanistically, we must consider all characteristics of the area in question and then determine whether it is the type of undeveloped private land for which the Legislature intended coverage. I posit that Lake Frederick is exactly the type of area that the RUA is intended to cover.

Apart from the method of its creation, Lake Frederick is, by all accounts, indistinguishable from a natural lake. It is a large area left open for those who enjoy the outdoors. Its dangers are comparable to those of a natural lake. Further, users have no better reason to rely on the protection of its owner than users of a natural lake. Lake Frederick is not like a basketball court or swimming pool, where we expect meticulous maintenance. Rather, it is a place people go to experience and risk the pleasures of the outdoors.

Although the record lacks specific dimensions for Lake Frederick, the length and dangers of the deceased’s journey describe a large area difficult to police. It is impracticable for a private party to keep such an area safe for public use. See Rivera, 510 Pa. at 16 n. 17, 507 A.2d at 8 n. 17 (“The need to limit owner liability derives from the impracticability of keeping large tracts of largely undeveloped land safe for public use.”). Rather than risk liability, the savvy owner would exclude the public from enjoying such areas. I suspect our Commonwealth is replete with reservoirs and other areas, once the product of significant alteration, that have now returned to a natural-like state. Today’s decision risks depriving the public of free access to all these places.

In reaching its conclusion, the majority relies overmuch on Harrison v. Middlesex, 80 N.J. 391 , 403 A.2d 910 (N.J.1979). In Harrison , the New Jersey Supreme Court determined that its recreation statute does not apply to a reservoir artificially created by damming a minor tributary of the Rahway River. Id. at 394, 402 , 403 A.2d at 911, 915 . The Harrison rationale, however, contains virtually no mention of the reservoir’s artificial character. Rather, the Harrison decision turns on the reservoir’s location in a highly populated suburban community. Id. at 401-02 , 403 A.2d at 915 . The New Jersey Supreme Court concluded that their statute applies only to rural and semi-rural lands. Id. We have expressly rejected such an interpretation of the RUA. See Rivera v. Philadelphia Theological Seminary, 326 Pa.Super. 509 , 474 A.2d 605, 610-11 (1984), modified on different grounds, 510 Pa. 1 , 507 A.2d 1 (Pa.1986). As the rationale of Harrison has been discredited in Pennsylvania, the case is inapposite.

Nevertheless, I conclude the trial court was correct in denying appellants’ motion for summary judgment. The RUA provides indemnity to “owners” which include “the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.” 68 P.S. §§ 477-1, 477-2, 477-4. The trial court found that appellants are in control of Lake Frederick because they control the dam. The record, however, reflects a genuine issue of material fact concerning appellant’s authority to exclude the public from Lake Frederick. As the RUA is designed to encourage opening of private lands for public use, it makes little sense to deem a party who cannot exclude the public “in control” of the land. A party who cannot exclude cannot affect whether the area is open to the public and, thus, extending protection does not fur *1169 ther the purposes of the RUA. Accordingly, I believe the power to exclude is a necessary element of being in control under the RUA definition of owner. Because a genuine issue of material fact remains concerning whether appellants are owners of Lake Frederick, summary judgment would be premature. See, e.g., Smitley v. Holiday Rambler, 707 A.2d 520, 525 (Pa.Super.1998). Accordingly, I would remand this matter for further proceedings.

For the forgoing reasons, I concur in the decision to affirm the denial of summary judgment, but I dissent from the majority’s conclusion that appellants are unprotected by the RUA as a matter of law.