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Rivero v. Lovington Country Club Inc.9/18/1997
WECHSLER, Judge.
{1} The opinion filed in this case on August 14, 1997 is hereby withdrawn and the following substituted therefor. The Lovington Country Club's motion for rehearing is denied.
{2} Plaintiff Jose D. Rivero filed a complaint for wrongful death and personal injury against Defendant Lovington Country Club after Plaintiff's son died as a result of an accident on Defendant's grounds. Defendant moved for summary judgment, claiming that it had immunity under the Off-Highway Motor Vehicle Act, NMSA 1978, ยงยง 66-3-1001 to -1016 (1985). Plaintiff moved for summary judgment on the basis that the road on which the accident occurred had become a public road by prescriptive easement and, alternatively, that Defendant's undisputed acts constituted willful, wanton, or malicious conduct that does not have immunity under the Act. The trial court granted Defendant's motion for summary judgment and denied Plaintiff's motion. Plaintiff appeals only the granting of Defendant's motion for summary judgment. We reverse.
FACTUAL BACKGROUND
{3} Plaintiff was in charge of maintenance at the Lovington Country Club. He and his family had lived on the Country Club grounds for about eleven years. Plaintiff's twenty-year-old son, David Rivero, rode his four-wheeler on the Country Club grounds with Defendant's knowledge. It appears that Defendant did not open its land for free recreational use by the public, but had taken measures to keep the general public out; Defendant's permission was given specifically to David because he was a resident on Defendant's property.
{4} On April 18, 1994, a member of Defendant's board of directors who was a welder welded shut a gate across a paved road on Defendant's grounds in accordance with a decision by the board of directors. The gate had been in existence since 1958, but had never been closed before. Plaintiff claims the single bar of the gate "was invisible to a motorcycle or cart rider." Affidavits by Defendant's manager and board members state that they decided to weld the gate closed to prevent people from driving in to dump garbage. The gate consisted of a 2 7/8" iron pipe, with a small "Road Closed" sign facing north, toward the outside of Defendant's property. There was no sign or warning device facing the inside of the property, despite Defendant's knowledge that David rode his four-wheeler around the property.
{5} The gate was welded shut between 5:45 and 6:30 p.m. At about 8:30 p.m. that same evening, David was riding his four-wheeler and hit the gate from the inside of Defendant's property. David died from his injuries ten days later.
Discussion
{6} The Off-Highway Motor Vehicle Act follows, in part, the approach of the 1965 Model Recreational Use Act. XXIV Council of State Governments, Suggested State Legislation 150 (1965); see . The purpose of the Model Recreational Use Act "is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes." Suggested State Legislation, (supra) , at 150; see
{7} Section 66-3-1013(A) of New Mexico's Act provides:
No landowner shall be held liable for damages arising out of off-highway motor vehicle-related accidents or injuries occurring on his lands in which he is not directly involved unless the entry on the lands is subject to payment of a fee.
In Matthews, the Court interpreted the term "directly involved." The Court noted that the Model Act's grant of immunity to landowners did not extend to acts which are "willful or malicious." Suggested State Legislation, (supra) , at 15
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