Recreational Use Statutes

Whether there is compensation and how much arising from a premises liability lawsuit generally depends on the state’s or local municipality’s recreational use statutes.  A recreational use statute is legislation intended to promote public recreational use of privately owned land.  All states in the U.S. have recreational use statutes that immunize landowners from liability when they allow the public to enter their land for recreational activities.  The statute does this by granting landowners some protection from liability for personal injuries or property damage suffered by land users pursuing recreational activities on the owner’s land.

The underlying policy of a recreational use statute is that the public’s need for recreational land has outpaced the ability of local, state, and federal governments to provide such areas.  Additionally, owners of large acreages of land are encouraged to provide public use of their land.

A recreational statute generally provides that a landowner does not owe to one using his/her property for recreational purposes and without charge:

  • a duty of care to keep the property safe for entry or use; or
  • a duty to give any warning of a dangerous condition, use, structure, or activity on the property.

 

The statute further provides that a landowner does not:

  • extend to a recreational user any assurance that the property is safe; or
  • confer on a recreational user the legal status of an invitee or licensee to whom a duty of care is owed[i].

 

The purpose of the statute is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability[ii].

Additionally, the purpose of a recreational use statute is “to encourage owners of land to make land, airstrips and water areas available to the public without charge for recreational purposes by limiting their liability toward persons entering thereon for such purposes”[iii].

However, statutory immunity from common law liability does not apply to:

  • willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or
  • injuries suffered in any case where the landowner charges people who use the land for recreational purposes[iv].

 

For example, purposefully placing an obstacle on the runway amounts to a malicious conduct.

Additionally, it is the common-law duty of an owner of land to use ordinary care to avoid or prevent injury to licensees and to refrain from willfully or wantonly injuring them.  A landowner has a common-law duty to protect licensees from injury on account of nuisances created or maintained on the land.  This is true even where the dangerous condition involves a defect; a threatening or impending danger to the public; and a private nuisance, to the property rights or health of persons sustaining particular relations to the same[v].

The recreational user statute codifies tort principles recognized at common law relative to the duties owed by owners and occupiers of land to those who are gratuitously upon the land.  The act does not expand or restrict the common-law duty owed to such licensees[vi].

A land owner is liable under the attractive use doctrine even in the presence of a recreational use statute.  A claim based on the doctrine of attractive nuisance begins with the fact that the child who was injured was a trespasser. The recreational use statute does not preclude the liability of a landowner under this doctrine.  Even though a child who uses land for recreational purposes under the statute is not a trespasser, the owner should be liable for injury to the child, where the owner is liable to a trespassing child.  “The doctrine of attractive nuisance applies to a child who trespasses and who is injured by a dangerous condition or structure, when the child was attracted by the dangerous structure or condition maintained or permitted on the property, if the structure or condition was peculiarly or unusually attractive to children, if the danger was not apparent to immature minds, and if the owner knew of the structure or condition, or if the facts were such as to charge the owner with knowledge of the structure or condition”[vii].

A recreational statute does not limit liability for:

  • willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or
  • injury suffered in any case when the owner of land charges the person or persons who enter or go on the land for the recreational use[viii].

 

However, recreational use statutes do not deny the equal protection of the laws.  A statute which discriminatorily favors one class is not arbitrary when a state fact can reasonably be conceived to sustain it.  Such a statute does not violate the Equal Protection Clause of the U.S. Constitution or state constitution[ix].

[i] 68 P.S. § 477-4.

[ii] 68 P.S. § 477-1.

[iii] Idaho Code § 36-1604.

[iv] Conn. Gen. Stat. § 52-557h.

[v] Kilts v. Board of Suprs., 162 Mich. 646, 651 (Mich. 1910).

[vi] Crawford v. Consumers Power Co., 108 Mich. App. 232 (Mich. Ct. App. 1981).

[vii] Jacobsen v. Rathdrum, 115 Idaho 266, 272 (Idaho 1988).

[viii] O.C.G.A. § 51-3-25.

[ix] Continental Can Co. v. Donahue, 5 Ohio St. 2d 224, 228 (Ohio 1966).


Inside Recreational Use Statutes