Recreational Use Statutes

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All states in the USA have recreational use statutes that immunize landowners from liability when they allow the public to enter their land for recreational activities. Few states, however, expressly set forth airstrips and associated aircraft operations as a form of recreational activity. While the laws are similar in many respects, states differ in terms of the type of land protected, whether the land needs to be suitable for recreation, and the types of individuals and organizations that may qualify as landowners. States also vary with regard to the recreational activities covered and whether landowners need to give permission for the public to engage in those activities in order to receive protection. If landowners impose charges on the users, the laws may no longer protect the owners. Questions arise over the duty of care and whether the owner acted willfully or maliciously in endangering users. The variety of questions raised indicates that pilots and airstrip owners in the various states would benefit from a thorough review and possible revision of their recreational use statutes to ascertain if aviation activities are specifically included within the provisions of their states’ recreational use statute.

What is a Recreational Use Statute?

"Recreational Use Statute" is a term given to legislation generally intended to promote public recreational use of privately owned land. 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 and that owners of large acreages of land should be encouraged to help meet this need. Changes in lifestyle and the environment during the last few decades further support this rationale. These changes include increases in the material wealth and leisure time of urban residents enabling them to spend more time on recreation, a decline in the amount of public recreational space available to urban residents, an increased awareness of the health and fitness benefits of recreation, a desire to provide the public with opportunities to enjoy the benefits of modern environmental control, and a response to increased private tort litigation of recreational accidents.

How does a Recreational Use Statute work?

Generally speaking, a Recreational Use Statute (R.U.S.) provides that a landowner owes, to one using his of her property for recreational purposes and without charge, neither a duty of care to keep the property safe for entry or use, nor a duty to give any warning of a dangerous condition, use, structure, or activity on the property. Under prior common law (law made by court rulings), the landowner had different duties of care depending on whether a person was on the land as an invitee, licensee, or a trespasser. The greatest duty of care was owed to an invitee and no duty was owed to an unknown, adult trespasser. Under an R.U.S., recreational users are treated in the same manner as trespassers and thus the landowner owes them no duty of care. The protection of the statute is lost, however, if the landowner charges for the use of the land or if the landowner is guilty of malicious conduct.

When is a landowner protected by a Recreational Use Statute?

The principal question addressed by courts in personal injury and wrongful death litigation where a R.U.S. is in effect is whether the statute applied under the facts that existed at the time of injury or death. If the facts are determined to be outside of the statute, liability will be determined in accordance with principles of state common law. For instance, if the court determines that the landowner didn't qualify as an "owner" defined by the statute (see below), the facts would be considered to be outside of the protection of the statute. Each state's R.U.S. was drafted with conditions specific to that state in mind. Therefore, landowner liability can vary greatly from state to state. Furthermore, judicial interpretations of the various statutes differ greatly such that similar statutes may yield very different results when tested in court. It is therefore very important to check your state's R.U.S. to see how much protection it offers and how the state court has interpreted it. A Recreational Use Statute acts as a deterrent to lawsuits, not total protection against lawsuits.

Who qualifies as a "landowner" under a Recreational Use Statute?

In order to be protected under a Recreational Use Statute, a person must qualify as an "owner" under the statute. Most Recreational Use Statutes broadly define "owner" to include the legal owner of the land, a tenant, lessee, occupant or person in control of the premises. Some statutes also consider the holder of an easement an "owner." A very important issue is whether or not a public entity or municipality qualifies as an "owner" under the state's Recreational Use Statute. Some statutes specifically include public entities in the definition of "owner" (e.g. Alabama, Illinois, Ohio) while others specifically exclude them (e.g. Florida, Iowa, Minnesota). Still others are silent on the issue and have left it to the courts to decide. Thus, in the states that include public entities as "owners" under their R.U.S., public land falls within the protection of the statute.

What type of land falls within the scope of the statute?

Most Recreational Use Statutes apply broadly to land and water areas as well as to buildings, structures, and machinery or equipment on the land. Again, each state will vary in how broad the statute and its interpretation will go with respect to what constitutes "premises" covered by the statute. Some states will follow closely the intent of the statute and include only those lands amenable to recreational use (for example, under Louisiana's R.U.S., the land must be an undeveloped, nonresidential rural or semi-rural land area in order to fall within the protection of the statute), while others will 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 (e.g. California, Connecticut).

What activity, use or purpose qualifies as "recreational?"

Many Recreational Use Statutes include, in the text of the statute, a definition of "recreational use" or "recreational purpose." These definitions usually include a list of activities such as hiking, swimming, fishing, pleasure driving, nature study, etc. The phrase "includes, but is not limited to" also appears in order to prevent a narrow interpretation of what constitutes a "recreational use." Some courts, however, limit the definition to only those activities that can be pursued outdoors (e.g. Louisiana, Washington). Presumably, mountain bicycling would be considered a "recreational use" of land by most courts even if it is not specifically listed in the definition of "recreational use" or "recreational activity." However, it would be advisable to not rely on the courts to determine if a particular recreational activity is covered under the R.U.S. Therefore, airstrips and their associated aviation activities should be enumerated in the statute.

Limitations of a Recreational Use Statute

Generally, the liability protection of a recreational use statute is lost if the landowner charges for the use of the land or if the landowner is guilty of malicious conduct, like purposely placing an obstacle on the runway.

Summary

It would behoove airstrip owners and pilots to research their respective state’s R.U. S. to determine its current efficacy in protecting the landowner as well as determining if the R.U.S. would include aviation related activities.