In Woody v. Pembina County Annual Fair Exhibition Ass’n, the North Dakota Supreme Court recently affirmed a district court’s ruling that an annual county fair was protected from negligence liability by recreational use immunity.

Plaintiff Audra D. Woody attended a fireworks display at the Pembina County Fair in Hamilton, ND. The Fair offered a fireworks display free of charge to the public and Woody did not pay a fee for entry onto the fairgrounds or for any activity she engaged in at the fairgrounds. While looking for a seat to watch fireworks, Woody stepped on a rotten board in the grandstand, fell and suffered personal injuries. She sued the Fair, alleging she sustained serious bodily injury due to the Fair’s negligence. Notably, it was stipulated that the Fair is a public entity that owns the fairgrounds and grandstand and that those areas are public lands operated solely for the Fair’s non-profit and tax-exempt purposes.

Based on these facts, the district court considered the issue of recreational use immunity regarding maintaining fairgrounds during the three-day county fair. The court determined the amended language of N.D.C.C. § 53–08 provides immunity for landowners inviting the public onto their land for recreational purposes, but does not provide immunity to landowners opening their land for commercial purposes.

Here, Woody alleged the Fair engaged in a commercial purpose because Fair attendees were indirectly subject to a “charge” which the Fair’s vendors paid on the attendees’ behalf. The Court, however, in affirming the district court’s grant of summary judgment for the defendant, reasoned that plaintiff’s theory that fair vendors indirectly paid her admission to the fireworks display did “not fit within the ordinary meaning of the statutory words,” and concluded “‘Commercial purpose’ does not include the operation of public lands by a public entity except any direct activity for which there is a charge for goods or services.” There was no finding of “direct activity” by the Fair because the Fair is a public entity, the fairgrounds were public lands and the plaintiff entered to watch fireworks free of charge.

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