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Stamper v. Kanawha County BOE
IN THE SUPREME COURT OF APPEALS OF WEST VIRGINIA January 1994 Term _________ NO. 21934 _________ ROBERT JAMES STAMPER, AN INFANT WHO SUES BY HIS NEXT FRIEND AND NATURAL GUARDIAN, CYNTHIA STAMPER, AND CYNTHIA STAMPER, INDIVIDUALLY, Plaintiffs Below, Appellants V. THE KANAWHA COUNTY BOARD OF EDUCATION, A PUBLIC CORPORATION,Defendant Below, Appellee __________________________________________________________ Appeal from the Circuit Court of Kanawha County Honorable John Hey, Judge Civil Action No. 93-C-502 REVERSED AND REMANDED ____________________________________________________________ Submitted: May 4, 1994 Filed: May 27, 1994 John Einreinhofer William M. Walls Meyer & Ford Charleston, West Virginia Attorneys for Appellants J. Victor Flanagan Travis S. Haley Cleek, Pullin, Knopf & Fowler Charleston, West Virginia Attorneys for Appellee JUSTICE MILLER delivered the Opinion of the Court. SYLLABUS BY THE COURT 1. "'The Legislature, when it enacts legislation, is presumed to know its prior enactments.' Syllabus Point 12, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953)." Syllabus Point 5, Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986). 2. "As a general rule of statutory construction, if several statutory provisions cannot be harmonized, controlling

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effect must be given to the last enactment of the Legislature." Syllabus Point 2, State ex rel. Department of Health and Human Resources, etc. v. West Virginia Public Employees Retirement System, 183 W. Va. 39, 393 S.E.2d 677 (1990). 3. W. Va. Code, 19-25-1, et seq., limiting liability of landowners, is not designed to cover real property owned by a county board of education. Miller, Justice: The appellants and plaintiffs below, Robert James Stamper, an infant, and Cynthia Stamper, his natural guardian and next friend, appeal an order of the Circuit Court of Kanawha County granting summary judgment in favor of the defendant, the Kanawha County Board of Education (Board). The infant plaintiff was injured while playing basketball on a court owned by the Board. The issue is whether the provisions of W. Va. Code, 19-25-1, et seq. (Act), limiting the liability of landowners, are applicable to county boards of education. The circuit court held that the Act did apply, and the plaintiffs appeal. The infant plaintiff was injured in August, 1992, while playing basketball at the outdoor court at Pratt Elementary School. He attempted to shoot a basketball and came down on an uneven surface on the court, which he characterized as a "rut." This action caused him to suffer torn ligaments to his right ankle. The school was not in session and the basketball game was not sponsored by the school. The parties agree that the plaintiff was in a recreational basketball game with friends. The parties also agree that the outdoor basketball court was kept open for the general public for recreational use and no fee was charged. The Board relied on language in W. Va. Code, 19-25-2 (1986), which generally provides that the owner of real property who permits persons to use the land for recreational purposes owes no duty of care to keep the premises in a safe condition or warn of a dangerous or hazardous condition.See footnote 1.W. Va. Code, 19-25-4, which serves to limit W. Va. Code, 19-25-2, states, in part: "Nothing herein limits in any way any liability which otherwise exists (a) for willful or malicious failure to guard or warn against a dangerous or hazardous condition, use, structure or activity, or (b) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land other than the amount, if any, paid to the owner of the land by the state or any agency thereof, or any county or municipality or agency thereof." See footnote 2 It contended that this immunity was applicable to real property owned by the Board. On the other hand, the plaintiffs argue that the Board overlooks W. Va. Code, 19-25-1 (1986), that sets out the legislative purposes of the Act.See footnote 3 They contend that this section, along with the definition of "land" and "owner" contained in W. Va. Code, 19-25-5(a)See footnote 4 and (b)See footnote 5 (1986), leads to the conclusion that the Act was designed only for private landowners. Furthermore, the plaintiffs maintain that there is a conflict between this general act and the more specific provisions of the Governmental Tort Claims and Insurance Reform Act, W. Va. Code, 29-12A-1, et seq., which is applicable to political subdivisions such as county boards of education. See W. Va. Code, 29-12A-3(c) (1986). Specifically, W. Va. Code, 29-12A-4(c)(3) and (4) (1986), permit liability claims to be filed against a political subdivision for injuries or death arising from the negligent failure to maintain its property.See footnote 6 We have not had occasion to consider the question of the Act's coverage of anyone other than private owners. Our only case discussing the Act is Kesner v. Trenton, 158 W. Va. 997, 216 S.E.2d 880 (1975), which involved a private landowner. The issue in Kesner was whether the landowner fell within the Act's exception of charging someone to enter the land, and, thus, was not afforded the Act's general protection from liability.See footnote 7 We concluded in Kesner that the landowner made a charge and, therefore, could be held liable for the negligent condition of his premises, stating in Syllabus Point 2: "W. Va. Code 1931, 19-25-1 et seq., as amended, does not limit the common-law liability of a landowner, or of a lessee in control of the premises, to those who enter the premises as business invitees and suffer injury thereon." Although not discussed by the parties, it appears that our Act is derived from a Model Act proposed in 24
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Suggested State Legislation 150 (1965). This Model Act was developed by the Committee of State Officials on Suggested State Legislation of the Council of State Governments. The Model Act is entitled "PUBLIC RECREATION ON PRIVATE LANDS: LIMITATIONS ON LIABILITY." The introduction of the Model Act states, in part, that "[i]n 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."See footnote 8 24 Suggested State Legislation at 150. The introduction goes on to point out the need for additional recreational areas for the public and concludes that without some limitation on tort liability, private owners would be reluctant to open their land to public recreational uses.See footnote 9 In Section 1 of the Model Act, the purpose of the Model Act is expressed in terms quite similar to Section 1 of our Act.See footnote 10 The same is true of the definitional language of "land" and "owner" contained in Section 2 of the Model Act.See footnote 11 Moreover, it is clear that W. Va. Code, 19-25-2, limiting the duty of a landowner,See footnote 12 is directly patterned after Sections 3 and 4 of the Model Act.See footnote 13 In a number of jurisdictions, courts have had occasion to decide whether a state's recreational use act limiting liability includes property owned by governmental entities. One of the most extensive discussions of this issue is found in Monteville v. Terrebonne Parish Consolidated Government, 567 So. 2d 1097, 1100 (La. 1990), where the Supreme Court of Louisiana began by noting: "The great majority of courts in other states interpreting recreational use statutes have held that because the statutes are in derogation of the common law and because they limit the duties of landowners in the face of a general expansion of premises liability principles, they must be strictly construed." (Citations omitted). We recognized in Rosier v. Garron, Inc., 156 W. Va. 861, 867, 199 S.E.2d 50, 54 (1973), that "statutes in derogation of common law will be strictly construed. Newhart v. Pennybacker, 120 W. Va. 774, 200 S.E. 350 (1938); Stephenson v. Cavendish, 134 W. Va. 361, 59 S.E.2d 459 (1950)." The court in Monteville went on to observe that recreational use statutes grant "immunities or advantages to a special class of landowners against the general public" and that "[i]t is an established principle that legislative grants of such rights, powers, privileges, immunities or benefits as against the general public, as distinguished from a right against some other party, should be construed strictly against the claims of the grantee." 567 So. 2d at 1101. (Citations noted).See footnote 14 The Louisiana Supreme Court then proceeded to point out that its recreational use statute was patterned after the Model Act and quoted at length the commentary in the Model Act which stressed the need for private landowners to make available land for public recreational purposes. It observed that other courts and commentators concluded that "many aspects of the enactment of the recreational use-immunity legislation strongly indicate that it was intended to benefit only private land owners." 567 So.2d at 1102. (Some citations noted).See footnote 15 We agree with the Monteville court that the Model Act was designed to benefit private landowners. Our Act substantially parallels the Model Act, as did the Louisiana statute. Much the same result was reached in Hovet v. City of Bagley, 325 N.W.2d 813 (Minn. 1982), and Goodson v. City of Racine, 61 Wis. 2d 554, 213 N.W.2d 16 (1973). Cf. City of Bloomington v. Kuruzovich, 517 N.E.2d 408 (Ind. App. 1987). We recognize some jurisdictions have reached a different result in regard to their recreational use acts. However, some of these jurisdictions based their decisions on acts that differ from the Model Act, indicating coverage is available to the governmental landowner.See footnote 16 Beyond this analytical background on the historical basis for our recreational use act, there exist other cogent reasons why we believe the legislature did not intend to make it applicable to public property. In 1965 when the Act was passed, there existed constitutional immunity barring suits against the State and its agencies under Section 35 of Article VI of the West Virginia Constitution.See footnote 17 This immunity continues to exist, as we recognized in Mellon-Stuart Co. v. Hall, 178 W. Va. 291, 296, 359 S.E.2d 124, 129 (1987): "This constitutional grant of immunity is absolute and, as we have consistently held, cannot be waived by the legislature or any other instrumentality of the State." (Citations omitted). Moreover, during this same period, there existed judicially created immunity against tort actions for municipalities. This immunity was not recognized as being abolished until Higginbotham v. City of Charleston, 157 W. Va. 724, 204 S.E.2d 1 (1974), overruled on other grounds, O'Neil v. City of Parkersburg, 160 W. Va. 694, 237

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S.E.2d 504 (1977). The same type of court-created immunity existed as to county commissions and county boards of education which, along with municipalities, constitute the majority of our political subdivisions. Both of these immunities also were abolished. See Gooden v. County Comm'n, 171 W. Va. 130, 298 S.E.2d 103 (1982); Ohio Valley Contractors, Inc. v. Board of Educ., 170 W. Va. 240, 293 S.E.2d 437 (1982). Thus, with this type of immunity against suits existing for state and local governments in 1965, it is difficult to conceive that the legislature intended to extend additional land use immunity to these bodies. Finally, we are brought back to the point raised earlier. When the legislature enacted the Government Tort Claims and Insurance Reform Act in W. Va. Code, 29-12A-1, et seq., it proceeded without any reference to the recreational use act. There are provisions in W. Va. Code, 29-12A-4(c)(3) and (4), which allow liability claims to be filed against political subdivisions for injuries or death resulting from the negligent failure to maintain property.See footnote 18 If the legislature believed it gave recreational use immunity to political subdivisions under the Act, it was acting in an inconsistent manner in allowing injury claims for negligently maintaining property owned by political subdivisions. We do not assume that the legislature is not aware of its prior legislation. As we stated in Syllabus Point 5 of Pullano v. City of Bluefield, 176 W. Va. 198, 342 S.E.2d 164 (1986): "'The Legislature, when it enacts legislation, is presumed to know its prior enactments.' Syllabus Point 12, Vest v. Cobb, 138 W. Va. 660, 76 S.E.2d 885 (1953)." Even if we were to assume that the legislature intended to give political subdivisions the benefit of the Act, then the enactment of the Government Tort Claims and Insurance Reform Act created an inconsistency by permitting suits for the negligent maintenance of real property owned by political subdivisions. In such a situation, we would apply Syllabus Point 2 of State ex rel. Department of Health and Human Resources, etc. v. West Virginia Public Employees Retirement System, 183 W. Va. 39, 393 S.E.2d 677 (1990): "As a general rule of statutory construction, if several statutory provisions cannot be harmonized, controlling effect must be given to the last enactment of the Legislature." For the foregoing reasons, we conclude that W. Va. Code, 19-25-1, et seq., limiting liability of landowners, is not designed to cover real property owned by a county board of education. Consequently, we reverse the summary judgment granted in favor of the Board and remand this case for further proceedings consistent with this opinion. Reversed and remanded. Footnote: 1W. Va. Code, 19-25-2, provides: "Subject to the provisions of section four [

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