National Roundup

Court rules for mom in accident on playground

HELENA, Mont. (AP) — A Miles City mother is entitled to make her case that the city should be liable for a head injury her daughter sustained in falling off a playground slide, the Montana Supreme Court ruled.
The Dec. 21 decision overturns a lower judge’s order dismissing the lawsuit filed by Tiffany Gatlin after her 8-year-old daughter suffered a severe head injury in the 2002 fall at Riverside Park.
The city failed to maintain a safe depth of material that would absorb the impact of a fall, Gatlin said.
Riverside Park is owned and operated by Miles City, which designed, installed and maintained the playground area and equipment.
The city reviewed its park system’s playground maintenance and safety in 2001, and a risk specialist for the city’s insurer recommended establishing adequate surfacing and “fall zones” under the equipment, Chief Justice Mike McGrath wrote in the 5-0 decision.
The city council adopted “current safety standards” for playgrounds in January 2002, six months before Gatlin’s daughter fell.
But District Judge Gary Day dismissed Gatlin’s claim, ruling that the city’s responsibility to maintain a safe playground area was a duty owed to the general public and not Gatlin’s daughter specifically.
Day cited the so-called public duty doctrine, in which an individual can’t recover a claim unless the person who was injured has a special relationship with the public entity.
The Supreme Court reversed Day’s ruling, saying while the public duty doctrine must be considered in negligence claims against public entities, it does not apply in every case.
The high court said the injury was foreseeable because children sometimes fall using playground equipment and the city recognized the potential for serious injury if the fall zones aren’t adequately maintained.
The city adopted safe fall-zone standards, and in doing so, it undertook the responsibility for adopting those standards, the justices ruled.
Gatlin also argued that Miles City violated the state’s recreational use laws that make a landowner liable for an injury due to “willful or wanton misconduct.”
Day dismissed that argument, too, but the Supreme Court justices overruled him.
A person “could conclude that the City had knowledge of the danger of children falling on hard surfaces in the park and knowledge of the steps that could be taken to reduce that risk,” McGrath wrote.
The justices sent the case back to Day, saying whether Miles City’s playground maintenance amounted to willful or wanton misconduct should be decided at trial.

New Mexico
Homeowners appeal deal over church property

SANTA FE, N.M. (AP) — A group of Santa Fe-area homeowners is appealing Santa Fe County’s decision to allow construction on Seagram’s whiskey heir Jeffrey Bronfman’s property where church members drink a hallucinogenic tea as a sacrament.
The six Arroyo Hondo homeowners object to the county spending about $400,000 to extend a waterline and build a sewage-treatment system there, saying using taxpayer money violates New Mexico’s anti-donation clause and the U.S. Constitution’s separation of church and state.
The notice of appeal was filed by Joseph Karnes on behalf of the homeowners in state court on Wednesday.
“While the waterline might have tangential benefits to the area, the expenditure of public funds in an effort to solve a private developer’s problems is blatantly unconstitutional,” Karnes told the Santa Fe New Mexican reports.
Members of the Santa Fe area chapter of O Centro Espirita Beneficente Uniao do Vegetal (Portuguese for “central beneficial spirit united in plants”), or UDV, consistently have declined public comment about their successful legal battles, which began more than a decade ago.
The religion originated in the late 1950s, when a Brazilian rubber tapper sampled a mixture of two plants that contain the hallucinogen N,N-dimethyltryptamine, or DMT, known as hoasca and used by Amazonian natives for centuries.
Combining elements of Christianity and often proscribing the use of alcohol, the practice grew quickly in Brazil.
Bronfman began holding UDV services in a yurt near his residence off Brass Horse Road in Arroyo Hondo. On March 21, 1999, federal agents raided his Santa Fe office, seizing more than 30 gallons of hoasca that had just arrived from Brazil.
The Santa Fe congregation responded by filing a federal lawsuit that demanded the return of the hoasca, which was likened to a divine entity. The lawsuit said the raid violated the group’s rights under the Religious Freedom Restoration act and the U.S. Constitution.
During a hearing in 2001, Bronfman testified the seizure of the tea harmed “the core of my being.”
UDV’s lawyer, Nancy Hollander argued there are no mental or physical maladies associated with consuming hoasca. She said the intake is so small that it does not cause hallucinations, but only heightens perception.
U.S. District Judge James Parker eventually ruled that UDV’s use of hoasca is protected under freedom of religion but the government appealed. The U.S. Supreme Court in early 2006 unanimously found in favor of the church, clearing the way for the legal use of hoasca.
Three years later, the UDV applied to the Santa Fe County to build 11,000 square feet of buildings on 2.5 acres of Bronfman’s residential property. The project proposal included a 7,100-square-foot temple with room for up to 100 worshippers, a 1,500-square-foot guesthouse for a clergy member and an 800-square-foot greenhouse for growing the plants used to make hoasca. The plan also called for keeping and renovating the existing 706-square-foot yurt.
Local residents opposed the plan at a public hearing and the County Commission voted 3-2 last year to deny the construction as incompatible with the neighborhood. UDV quickly appealed to U.S. District Court, claiming religious discrimination.
Parker again sided with the church in September and the county began settlement negotiations with the church along with a mediator. After an all-day session Nov. 8, the county announced a settlement that would allow UDV to build its temple, but not a greenhouse or new yurt.
The agreement requires UDV to limit the hours and days of services and limit attendance, among other requirements. The county agreed to pay $300,000 to extend the waterline and install a fire hydrant, $80,000 for a wastewater system on the property and more for the church’s legal fees.