Berman v City of Newport

Rhode Island Supreme Court, No. 2008-74, April 20, 2010

This case adjudicated the liabilities of Newport (easement holder) and the landowner/easement grantor (Preservation Society of Newport) for injury suffered by a member of the public while using the Cliff Walk easement. The court held that because the city had actual notice of dangerous instabilities in the ground underneath the easement, particularly in the area where this injury occurred, the City had effectively “discovered the user’s peril” after the city willfully or maliciously failed to warn or guard against a known danger. Accordingly, the city came within an exception to Rhode Island’s Recreational Use Statute (RUS), R.I. G.L. 1956 chapter 6 of title 32 (P.L. 1978, ch. 375, §1) and thus lost the RUS’ protections again municipal liability. On the other hand, the court held the easement equivalent to a public way, and because the owner had no control over the easement the owner should not be liable for injuries suffered on the easement. The plaintiff “ventured onto a ‘beaten path,’ when, he alleges, the ground shifted below him, causing him to fall twenty-nine feet onto the rocks below. He suffered a severe spinal cord injury, rendering him a quadriplegic.” A concurring opinion characterized the City as, “saturated with the knowledge that some feature of his land presents a clear and present danger to completely innocent users”. A dissent would have interpreted the legislative intent of the RUS as exculpating the City.

Section 32-6-5 of the RUS includes the following exception to its general scope:“(a) Nothing in this chapter limits in any way any liability which, but for this chapter, otherwise exists: “(1) For the willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity after discovering the user’s peril; or “(2) For any injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof…”. The court wrote the legislative intent of the RUS is that, “all people who use this state’s public recreational resources are classified as trespassers to whom no duty of care is owed, save to refrain from willful or malicious conduct as defined in the RUS”.

The court also found that the landowner and the city were not engaged in a joint enterprise: “The evidence submitted in this case in no way establishes that the landowners … agreed or even contemplated acting in such a close relationship with the city (or state) that a joint enterprise is a plausible construction of their relationship.”

Court Summary available at:
Decision available at:

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