Huddleston acknowledges that it would be the first time the Supreme Court has considered the application of the act to a governmental entity. "Because a private person in these circumstances would be immune from liability for negligent conduct under the recreational use statute, the MDC should be similarly immune," writes Huddleston.
Steven D. Ecker, of Cowdery, Ecker & Murphy, who is handling the appeal for Blonski, argues that the trial court judge was right to deny the MDC's motions to set aside the verdict. He argued in his Supreme Court brief that because the gates were installed to guard the water supply, "it is indisputable that the specific conduct that caused Ms. Blonski's injuries had been performed as an integral part of the MDC's proprietary function."
Ecker continued: "Ms. Blonski was not injured by a fellow bicyclist traveling recklessly along the MDC's roadway, or by a low-hanging banner announcing a weekend bike race...
"Rather, the plaintiff was injured because the MDC had carelessly decided to safeguard its water supply against terrorist access by placing an inconspicuous three-inch diameter pipe gate at neck height across a pathway that MDC knew was traveled by bicyclists. This act was negligent…," concluded Ecker.
Ecker also refutes the defense's attempt to apply the Recreational Land Use Act. "When the legislature wants governmental entities protected by the same immunity as private persons, it says so," said Ecker.