The suitability of a defendant’s property for recreational activity is a prime element in fixing a premises owner’s liability[i].
Most recreational use statutes apply broadly to land, water areas, buildings, structures, machinery, and equipment on the land. However, states will vary with respect to what constitutes premises covered by the statute. Some states follow the intent of the statute and include only those lands amenable to recreational use. Some statutes make a much broader interpretation and only consider whether a recreational activity had taken place on the land, regardless of how suitable that land was for recreational use.
Land under recreational statute means “land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty”[ii].
Some states have limited the application of recreational use legislation to certain types of land. The courts have used a variety of different criteria to identify the types of land to which recreational use provisions should be applied.
The criteria include:
- Whether the land is susceptible to use for the recreational activities enumerated in the legislation;
- the use for which the land is zoned;
- the nature of the community in which it is located;
- its relative isolation from densely populated neighborhoods;
- its general accessibility to the public at large;
- whether the land is rural or urban;
- the size of the land;
- whether the land is developed, occupied or improved; and
- whether the injury-causing condition s on the land are natural or artificial[iii].
Some U.S. jurisdictions expressly limit the application of their recreational use legislation to specific types of land. For example in Arizona the legislation applies to agricultural, range, open space, park, flood control, mining, forest or railroad lands and other similar lands which are available to a recreational or educational user[iv].
In order to determine immunity from liability, under the statute, the focus must be on the intention of the landowner or the purpose for which the landowner was using the land at the time of litigation[v].
Moreover, an improvement to property does not, on its own, automatically remove the property from the protection of a recreational use statute for injuries that occur on the property. Most of the definitions include improvements also[vi].
When an owner expressly invites a person to enter the land, the owner is not immune under the recreational use statute. The question to be decided is whether the landowner desired, induced, encouraged, or expected others to enter the land so as to make them invitees. It is not enough, to hold land open to the public, or that the public at large are permitted to enter at will upon the land for their own purposes. There must be some inducement or encouragement to enter, some conduct indicating that the premises are provided and intended for public entry and use; and that the public will not merely be tolerated, but is expected and desired to come. When a landowner tacitly permits the boys of the town to play ball on his/her vacant lot, they are licensees. However, when s/he installs playground equipment and posts a sign saying that the lot is open free to all children, there is then a public invitation, and those who enter in response to it are invitees[vii].
[i] Moscato v. Frontier Distrib., 254 A.D.2d 802, 803 (N.Y. App. Div. 4th Dep’t 1998).
[ii] Conn. Gen. Stat. § 52-557f.
[iii] Sulzen v. United States, 54 F. Supp. 2d 1212, 1217 (D. Utah 1999).
[iv] A.R.S. § 33-1551.
[v] Widman v. Johnson, 81 Wn. App. 110, 114 (Wash. Ct. App. 1996).
[vi] Yanno v. CONRAIL, 1999 PA Super 338, P7 (Pa. Super. Ct. 1999).
[vii] McCormick v. Department of Natural Resources, 673 N.E.2d 829, 837 (Ind. Ct. App. 1996).