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Creation of a dangerous condition is insufficient to establish liability under Nevada’s recreational use statute
3/25/24
The Nevada Supreme Court recently expanded protections for property owners arising out of known hazards. In Abbott v. City of Henderson, a mother sued for injuries sustained when she fell while assisting her child on a slide at a city park. Abbott v. City of Henderson, 140 Nev. Adv. Op. 3, 542 P.3d 10 (2024). The rubber surface of the playground was not level with the surrounding area, resulting in a four-inch drop of 90-degrees. This drop-off was created when city employees failed to bevel the edge of the rubber surface during installation. The mother alleged negligence arising under premises liability against the city.
The city claimed immunity under Nevada’s recreational use statute, which provides that premises owners, lessees, or occupants do not owe a duty to keep any premises safe for entry or use by others for the purpose of participating in any recreational activity, nor do they have any duty to warn against any hazardous condition on the premises to anyone entering for such purposes. Nev. R. Stat. 41.510(1). However, the statute contains an exception to immunity where the landowners participate in “willful or malicious failure to guard, or to warn against, a dangerous condition….” Nev. R. Stat. 41.510(3)(a)(1).
Broadly construing the statute, the Nevada Supreme Court determined that the mother was engaged in a “recreational activity” when walking and assisting her child at the playground, and that a city park was the type of premises envisioned for protection under the statute.1
The mother argued that the city could not be immune under the statute, as it willfully created the hazardous condition and had knowledge of the four-inch drop. The Nevada Supreme Court rejected this argument, noting that willful conduct with respect to the baseline condition necessary for injury is not the same as willful failure to guard against a hazard. Creating a hazardous condition is insufficient to meet the standard, as willfulness requires an intentional “design to inflict injury.” While the mother had shown that the city knew of the drop-off, she did not present evidence that the city intended to inflict injury. City workers regularly maintained and inspected the premises, showing a level of care by the city, and no evidence existed of any prior injuries related to the drop-off in the seven years of its existence. As the mother provided no evidence of willful conduct, the city was entitled to immunity under the statute.
The Court’s expansive ruling in Abbott could result in greater legal protections for property owners in Nevada. The applicability of Nevada’s recreational use statute should be evaluated for all claims arising under premises liability.
For more information, please contact Stephanie Bedker at stephanie.bedker@fmglaw.com or your local FMG attorney.
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- The Nevada Supreme Court had previously limited the recreational use statute to “rural, semi-rural, or nonresidential” properties. See Boland v. Nevada Rock & Sand Co., 111 Nev. 608, 612, 894 P.2d 988, 991 (1995). However, the Nevada Legislature later expanded the statute to apply to “any premises,” thereby superseding Boland’s land-type limitations holding. ↩︎
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