Earlier last month, one state’s supreme court issued a written opinion in a slip-and-fall case that required the court to determine whether the lower court properly applied the state’s recreational use statute. The case also presented the court with the opportunity to discuss one of the foundational rules of appellate procedure. Specifically, the court grounded its opinion in the rule stating that when a plaintiff’s evidence is presented for the first time on appeal, it cannot be considered because it was not presented at trial.
The plaintiff was the mother of a young boy who was injured while he was playing baseball in a park owned and operated by the defendant city. Evidently, the boy’s lower leg slid under home plate as he attempted to slide home. When he stood up after coming to a stop, he broke his leg in two places. The plaintiff filed a premises liability lawsuit against the city, claiming that the bases were not properly maintained and were a danger to those using the baseball diamond.
In a pre-trial motion for summary judgment, the city argued that it was immune from liability under the recreational use statute. Specifically, the city claimed that it allowed all citizens to use the park for no cost, and under the statute, it could not be held liable. The plaintiff objected to the application of the statute but offered no basis for the objection. Ultimately, the trial court granted the city’s motion and dismissed the case, finding that the city was immune under the recreational use statute.