The Recreational Use Exception to Premises Liability

RECREATIONAL USERS OF LAND GENERALLY USE THE LAND AT THEIR OWN RISK

“Recreational” land use includes a variety of activities, including (but not limited to): picnicking, walking, hiking, climbing, trekking, hunting, fishing, camping, ATV or snowmobile use, horseback riding, parachuting, and exploring. Recreational use also includes entering land for general enjoyment of the site or its history, landscape, natural or man-made features.

As a general rule, land owners have no special duty to ensure that land is “safe” for recreational uses. People who use the land of others for recreational purposes generally do so at the user’s own risk.

Here, as elsewhere, the term “owner” includes any person with an ownership interest in the land, as well as people in control of the property.

However, the general statement that land owners have no special duty to keep land safe for recreational uses is not the end of the legal (or liability) story. Land owners and people in possession of recreational land are liable, and do have a duty to people under a variety of circumstances, all of which are exceptions to the rule.

EXCEPTIONS TO “RECREATIONAL USE IMMUNITY”: INVITEES, PAYING GUESTS, AND MALICIOUS FAILURE TO WARN

The recreational use immunity does not apply to people who are expressly invited to use the land, either directly by the property owner or as part of a general invitation. Land owners (and people in possession and control of land) do have a legal duty to keep the property reasonably safe for people invited to use it for specific–including recreational–purposes.

In addition, the recreational use immunity does not apply to people who pay to enter or use the land for recreational purposes. Although in many contexts, the law recognizes payments other than money as sufficient “consideration” to support contracts and other legal liabilities, in the context of the recreational use exception, the payment does need to be a fee paid in money.

Land owners also have a duty to warn recreational users of known hazards which are not visible to the user. For example, if the land owner knows that a river bank is unstable, the land owner has a duty to warn recreational users about the instability, either personally or by use of signs and other situationally-appropriate warning devices.

The land owner’s immunity will be lost if the owner “willfully or wantonly” fails to warn recreational users and invitees about known hazards on the land.  However, the legal burden of proof in these situations lies on the plaintiff, who must prove that the defendant (a) knew of the hazard, (b) was aware that the hazard might cause injury, and (c) made a conscious decision or willful failure to act or warn the plaintiff.