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05/27/97 JENNIFER L. BREZINSKI AND JEFFERY S.

May 27, 1997

JENNIFER L. BREZINSKI AND JEFFERY S. BREZINSKI, INDIVIDUALLY AND AS SPOUSE OF JENNIFER L. BREZINSKI
v.
COUNTY OF ALLEGHENY, APPELLANT



Appealed From No. G.D. 95-9704. Common Pleas Court of the County of Allegheny. Judge McFALLS.

Before: Honorable Doris A. Smith, Judge, Honorable Dan Pellegrini, Judge, Honorable Jess S. Jiuliante, Senior Judge. Opinion BY Senior Judge Jiuliante. Judge Smith Dissents.

The opinion of the court was delivered by: Jiuliante

OPINION BY SENIOR JUDGE JIULIANTE

FILED: May 27, 1997

The County of Allegheny appeals, by permission, an interlocutory order of the Allegheny County Court of Common Pleas denying its motion for summary judgment filed in a personal injury action instituted against the County by Appellees Jennifer L. and Jeffery S. Brezinski. We reverse the trial court's denial of summary judgment.

On September 17, 1994, Jennifer Brezinski slipped and fell down an earthen embankment in a County-owned park, walking downhill from a picnic pavilion to the parking lot. At the time of her fall, Mrs. Brezinski was attending a reunion picnic with her husband's fraternity, for which a use permit had been obtained from the County. Appellees filed suit against the County, alleging negligence based upon, inter alia, the County's failure to construct a safe walking surface between the picnic shelter and the parking lot. In its answer with new matter to Appellees' complaint, the County raised as defenses its immunity under what is commonly called the Political Subdivision Tort Claims Act (Tort Claims Act) *fn1 and the Recreation Use of Land and Water Act (Recreation Use Act). *fn2 The County subsequently filed a motion for summary judgment arguing that the deposition testimony of both Appellees established that Mrs. Brezinski's fall was caused by the slippery grass and mud resulting from a day-long rainfall, which was a dangerous accumulation of water on the hillside rather than a dangerous condition of the real estate itself.

On June 11, 1996, the trial court denied the County's motion. In an order dated October 7, 1996, this Court granted the County's petition for review filed pursuant to the note to Pa. R.A.P. 1311 and allowed the appeal. In its December 9, 1996 opinion in support of the order denying summary judgment, the trial court concluded that the facts necessary to decide whether to grant immunity to the County are in dispute, specifically whether the land was "unimproved," whether the County charged a fee for the use of the land, and whether the sole cause of Mrs. Brezinski's injuries was the rain.

In arguing that the trial court erred in denying its motion for summary judgment, the County has raised two issues for our review: 1) whether the real estate exception to governmental immunity applies when a person slips and falls on a rain-soaked slope; and 2) whether the Recreation Use Act bars recovery for injuries in a park containing certain improvements, where no admission fee is charged. We conclude that the County is immune from liability under the Recreation Use Act, and so reverse the denial of summary judgment on that basis. *fn3

Initially, we note that summary judgment is only appropriate when, after examining the record in the light most favorable to the non-moving party, there is no genuine issue of material fact, and the moving party clearly establishes that he is entitled to judgment as a matter of law. Tomikel v. Department of Transportation, 658 A.2d 861 (Pa. Commw. 1995). Our scope of review of a grant or denial of summary judgment is limited to determining whether the trial court committed an error of law or abused its discretion. Id.

The Recreation Use Act was adopted "to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." Section 1 of the Recreation Use Act, 68 P.S. § 477-1. Under Section 3, land owners are shielded from liability as follows:

An owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.

68 P.S. § 477-3. A "recreational purpose" for which protected land may be used includes "picnicking." Section 2(3), 68 P.S. § 477-2(3).

The Recreation Use Act applies only to lands that are largely unimproved in character and where no admission fee is charged. Lory v. City of Philadelphia, 544 Pa. 38, 674 A.2d 673, cert. denied, U.S. , 117 S. Ct. 184 (1996); Mills v. Commonwealth, 534 Pa. 519, 633 A.2d 1115 (1993). The County claims that it should be immune in this case because its park was not improved and because there was no fee charged to Appellee for attending the picnic on the day of Mrs. Brezinski's fall. We agree.

Although "land" is defined in Section 2 of the Recreation Use Act, 68 P.S. ยง 477-2, to include "buildings, structures and machinery or equipment when attached to the realty," the courts have held that only owners of unimproved land are protected from liability. See, e.g., Brown v. Tunkhannock Township, 665 A.2d 1318 (Pa. Commw. 1995), petition for allowance of appeal denied, 544 Pa. 636, 675 A.2d 1252 (1996). As the Supreme Court has explained, the Recreation Use Act is designed to encourage the opening up of large, private land holdings for outdoor recreational use by the general public and that "buildings" in the definition of "land" was intended to be limited to ancillary structures attached to open ...


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