Landowner Liability
Tina Burghardt, IMBA
1996
In today's litigious society, private landowners and public land managers must concern
themselves with the issue of liability. The fear of a lawsuit is often enough to prevent
private landowners from opening their land to mountain bicycling even though they
would like to share their land with the public. Public land managers must also deal with
the issue of liability and may even use it as one reason to close trails to mountain
bicycling.
Most states have enacted laws that greatly limit both private and public landowner
liability. On the private side, these laws are called Recreational Use Statutes. For public
land, the governing law is usually the state's Governmental Immunity Act or State Tort
Claims Act. These laws are important for the future of mountain bicycling as they can
shift the burden of responsibility to bicyclists and away from private landowners and
public land managers. Private landowners and public land mangers are more likely to
welcome mountain bicycling and other recreational activities if they are protected from
liability. IMBA has always stressed personal responsibility for mountain bicycling and this
notion can be further underscored by these laws.
While most states currently have laws that limit landowner liability, these laws can vary
greatly from state to state. The purpose of the following information is to provide a
general picture of how these laws work and to answer some general questions regarding
landowner liability. This information is meant to provide a starting point and reference
guide for those interested in their state's liability laws. This guide, however, is not meant
to be the definitive source of information. Laws are not static and the law in your state
may have changed since the research for this guide was done. Always contact your
State Attorney General, your City or County Attorney, or private counsel regarding the
status of liability laws in your state.
Contents
Private Landowner Liability
* Private Landowner Liability
* Limitations of a Recreational Use Statute
* Other Issues Affecting Landowner Liability
* Private Landowner Liability: Some Common Questions
* A Model Statute
Public Landowner Liability
* Federal Tort Claims Act
* State Tort Claims Acts (Governmental Immunity Statutes)
Table of State Tort Claims Acts
Conclusion And Sources For More Information
Bibliography
Appendix: Chart of State Recreational Use Statutes
Private Landowner Liability
Often, private landowners are unwilling to open up their land to public use for the simple
reason of liability. While this is no doubt a valid concern, every state has legislation on its
books that addresses this issue and usually offers private landowners protection from
liability. Generally, these laws are called Recreational Use Statutes. While each state
has some form of Recreational Use Statute, the protection offered to landowners varies
greatly from state to state. The following provides a general outline of how these laws
operate and who qualifies for their protection.
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 broad immunity 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 precedent), 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.
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 other 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
semirural 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."
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.
What constitutes payment for use?
Most Recreational Use Statutes do not protect landowners from liability if the landowner
opened up his or her land in exchange for payment. Whether or not a payment for use
was made seems a relatively simple question. However, the issue does arise in litigation
and the results vary greatly from state to state. For instance, in Michigan, the courts
have held that a vehicle entry fee to a public park was not a payment for use and thus
granted the park immunity from liability. Similarly, a fee for a fishing license was not
considered payment for use in a case against the United States. On the other hand, an
Illinois court held that a landowner who charged $4.00 per dirt bike (motorcycle) was not
immune from liability because this constituted payment for use.
What constitutes malicious conduct?
Most Recreational Use Statutes do not protect a landowner from liability if the landowner
willfully, maliciously, or deliberately causes an injury. Many courts require actual
knowledge of a dangerous condition, knowledge that an injury could result from that
condition, and inaction in the face of such knowledge. This standard is generally difficult
to prove in suits against private landowners because the plaintiff (injured party) must
show that the landowner had actual knowledge (as opposed to constructive knowledge
which means the landowner "should have known") and that the landowner willfully failed
to guard or warn against the dangerous condition. Again, interpretations of this standard
can vary from state to state.
In other words, if a landowner has no knowledge of a dangerous condition, he or she is
under no duty to investigate the land for dangerous conditions. For instance, courts have
found that the federal government's actions reached the level of willfulness when park
rangers failed to warn about the extremely high temperature of the water in a hot spring
and adjacent stream even though they had knowledge that the water was dangerously
hot and others had been burned.
Other Issues Affecting Landowner Liability
Does a Recreational Use Statute protect landowners from liability if a minor is injured on
his or her land?
Many recreational use statutes refer to "any user" or "any person" without making any
reference to whether or not minors are included in that language. It is therefore important
to check the statute closely for language that either specifically excludes or includes
minors in the definition of "recreational user." If the statute is silent on the matter, it is
important to check your state's case law to see how the courts have dealt with the issue
of minors and whether or not they are included in the Recreational Use Statute.
What is an Attractive Nuisance and does a Recreational Use Statute protect the
landowner from liability under the doctrine of attractive nuisance?
Basically, the doctrine of Attractive Nuisance makes a landowner liable for injuries
caused by a condition on his or her land if the landowner knew that a child was likely to
enter the land because of that condition. An unfenced swimming pool or trampoline are
common examples. Some recreational use statutes expressly exclude protection against
an attractive nuisance claim. This issue is somewhat interrelated to whether or not the
statute applies to minors or only those young enough to be protected by the doctrine of
attractive nuisance. Again, it is important to check the statute closely to see how or if it
addresses this issue.
What is Adverse Possession and does a Recreational Use Statute protect landowners
from an adverse possession claim?
Adverse possession is a way to get ownership by continual use or possession of land
without permission or objection by the actual landowner. Some recreational statutes
foreclose the possibility of gaining a permanent right of access by adverse possession.
This basically means that landowners can open their land to recreational use with the
knowledge that they can then close it when they wish without worrying about the
possibility of the public gaining a permanent right to the land. Again, check your state's
statute to see how or if it addresses this issue.
Private Landowner Liability: Some Common Questions
Q: I have a trail across my land and I want to open it to mountain bikers, but I don't want
to get sued if somebody gets hurt. What can I do?
A: First, get a copy of your state's Recreational Use Statute. You can check your local
law library, or call IMBA. Chances are that your state has one that limits your liability
considerably. Generally speaking, you probably cannot charge for the use of your land
and still be protected. Also, most Recreational Use Statutes don't protect against
"malicious conduct" (see above). Additionally, check the statute to see what is required
to "open" your land to the public. Most states consider the lack of "no trespassing" signs
as implied permission and sufficient to get protection of the statute. However, Rhode
Island and Delaware, for instance, require landowners to take affirmative measures to
demonstrate their intent to open their land to the public.
Q: I plan to open a private mountain bike park on my property . If I charge people to use
it, how does that affect my liability?
A: In most states, if a landowner charges for the use of his or her land, the landowner
cannot claim protection from liability under a Recreational Use Statue (see page 5,
above). This is mainly because the intent of the statute is to open private land to public
recreational use, not to insulate commercial enterprises from liability. By charging people
to use their land, landowners are in effect acting commercially and therefore owe a
higher standard of care to those using the land. (Liability for commercial enterprises will
not be addressed in this paper.) Some states allow a landowner to charge a small fee for
maintenance of the land by setting a maximum dollar amount that the landowner can
charge and still be protected by the statute. Again, check your state's statute to see how
it addresses the payment for use issue.
Q: What kind of conduct will I liable for it if I allow people to mountain bike on my land?
A: Most Recreational Use Statutes protect landowners' conduct until it falls under the
definition of "malicious conduct" (see above). This basically means that a landowner will
be liable for a dangerous condition on the land only if he or she knew of the condition
and purposely chose not to warn others or safeguard others from that condition.
Landowners are therefore not responsible for unknown conditions of their land and are
not required to insure the safety of their land should they open it up for public
recreational use. Once again, check your state's statute to see how it addresses
malicious conduct.
Q: If I allow people to mountain bike on my land, do they need to sign a waiver in order
for me to be protected from liability?
A: Generally, no. Since most state's Recreational Use Statutes protect landowners from
liability (with some limitations), a waiver is not necessary. The statute essentially serves
the same purpose as a waiver and is obviously much less troublesome for the
landowner. To be extra safe, a landowner can post "enter at your own risk" signs to put
users on notice that there may be dangerous conditions on the land. Also, it can't be
stressed enough that these laws put the responsibility of care on the users and not on
the landowners. Finally, check your state's statute to find out the status of landowner
liability and how much protection it provides.
A Model Statute
Because Recreational Use Statutes can and do differ from state to state, mountain
bicyclists and other recreational users may not benefit as much as they can from these
statutes. Similarly, landowners may be unwilling to open their land to the public because
of a statute that does not offer enough liability protection. A well drafted Recreational
Use Statute, therefore, will increase the opportunities for riding without changing cyclists'
expectations of the terrain or their responsibility as users of land. Landowners, on the
other hand, will benefit from the immunity granted to them by the statute should they
open their land to recreational use.
The following guidelines address the major components of Recreational Use Statutes
and how they might best be drafted to benefit both mountain bicyclists and private
landowners alike.
Legislative Intent Statement
Many, but by no means all, Recreational Use Statutes contain a legislative intent
statement which articulates the underlying policy of encouraging private landowners to
open their land to the public for recreational use. The inclusion of a good legislative
intent statement, therefore, should give clear guidance to the courts of how the statute
should be interpreted in order to honor this policy. Furthermore, the legislative intent
statement might include language indicating that in the case of an ambiguity, the statute
should be construed liberally in favor of the landowners if it is likely to promote increased
public recreational opportunities.
Clear definition of "recreational use"
The easiest way to ensure that mountain bicycling is considered a "recreational use"
under the statute is to specifically include it in the definition. While it is hard to imagine
mountain bicycling as not being considered "recreational", its inclusion in the definition
will ensure that no ambiguities arise. (Imagine, for example, a scenario in which a
mountain cyclist was injured while commuting across one's land and the court does not
construe this to be a "recreational use" since it was not included in the definition and the
landowner is consequently found liable.) Many statutes include an illustrative list of
"recreational uses" to give the courts guidance. These lists are helpful but it should be
specified that the list is merely exemplary and not inclusive.
Responsibility of recreational users
Along with a clear definition of "recreational use", a Recreational Use Statute could
include language addressing the responsibilities of the recreational user. IMBA has
always stressed the importance of rider responsibility and assumption of risk in its policy
of responsible trail use. Language from Montana's snowmobiler's statute might be
incorporated into a Recreational Use Statute in order to articulate the notions of rider
responsibility and assumption of risk. Montana's snowmobiler's statute reads, in part:
" A recreational use is enjoyment of an activity on another's property,where the
anticipation of such participation may reasonably cause a participant to assume limited
liability for accidents arising out of the use in preference to foregoing the use entirely, or
where a participant of reasonable proficiency in the activity would normally be aware of,
understand, accept, and assume the risks associated with possible landowner
negligence as a precondition to entering the land to participate."
The underlying policy of such language encourages user responsibility which in turn may
make landowners more comfortable in opening their land to the public. Moreover, such
language further supports that the goal of the statute is to increase land available for
public use without increasing landowner liability.
Clear definition of "landowner"
As mentioned above, some statutes explicitly include or exclude public entities as
"owners". Absent such language, whether or not public lands fall under a state's
Recreational Use Statute can become a complicated issue fraught with public policy
arguments that go beyond the scope of this paper. Many states have Governmental
Immunity Acts that outline the scope of the government's liability and the processes
necessary to bring legal action against the government. (See public landowner liability,
below.) The easiest way to avoid these complications, therefore, is to specifically include
or exclude public entities as "landowners" under the Recreational Use Statute. While the
decision to include or exclude public entities remains complex and often politically
charged, a definitive position one way or the other gives the courts the necessary
guidance to ensure consistent interpretations.
Discourage frivolous lawsuits
Generally, legal costs are not awarded to the winner. Therefore, despite the protection
landowners receive under Recreational Use Statutes, it is still costly to fight a lawsuit
even if it is without merit. A possible, although not necessarily ideal, method to prevent
frivolous lawsuits is to award legal costs to landowners not found liable in a lawsuit.
Maine's Recreational Use Statute, for instance, includes a section that awards any direct
legal costs, including reasonable attorney's fees, to a landowner who is not found liable
under the statute. Such a clause undoubtedly discourages lawsuits against a landowner,
which in turn may encourage more landowners to open their land to public use.
Cap on payment for use of land
Generally, a landowner will lose protection of a Recreational Use Statute if he or she
charged for the recreational use of the land. It is possible, however, to set a maximum
dollar amount that a landowner could receive in a given time for use of the land without
losing the protection of the statute. Wisconsin, for example, has a $500 per year cap on
what a landowner may receive for use of the property and still retain protection under the
statute. One possible rationale behind this payment cap is that a landowner may use the
money for maintenance or repair of the land that is open to public use. Again, such a
clause may provide further encouragement to landowners to open their land to public
recreational use.
Public Landowner Liability
While liability is no less a concern for public landowners (e.g. city or state owned parks),
the laws affecting their liability are more complex and less consistent on a state by state
basis than those concerning private landowners. In the recent decades, the very old
doctrine of sovereign immunity has been abolished in almost every state. The idea of
sovereign immunity dates back to the English notion that "the King can do no wrong."
Therefore, under the doctrine of sovereign immunity, an injured party could not bring a
negligence lawsuit against federal, state, or to a limited extent, local governments.
Unfortunately, the demise of sovereign immunity coupled with record numbers of people
using public land has resulted in more and more lawsuits against public parks and
recreation sites. Public land managers are therefore acutely aware of liability and
necessarily take steps to minimize their chances of being sued. This can ultimately result
in restricted access to mountain bicyclists as public land managers seek ways to avoid
potential injuries and subsequent lawsuits. Fortunately, there are laws on the books in
each state that define the scope of governmental liability. Simple awareness of these
laws can help land managers make more calculated decisions regarding off-road cycling
as their liability concerns may not be as grave as they believe and there are a great
many cases where existing laws provide protection.
Laws affecting public landowner liability
In the absence of sovereign immunity, every state has enacted some form of a State
Tort Claims Act or Governmental Immunity Act which acts as the primary basis for tort
liability for municipal, county, school, and state governmental bodies. (See attached
table of statues) On the federal level, the Federal Tort Claims Act serves as a basis for
liability. Many state Tort Claims Acts follow the same format as the federal one. What
this basically means is that each state has enacted a law that outlines the limit or extent
of its liability. In other words, some states are "always subject to liability unless", while
others are "never subject to liability unless..."
To further confuse the issue, some state courts have held that the state Recreational
Use Statute was applicable to governmental entities so as to relieve the government of
liability for injuries sustained by users of recreational areas. Whether or not a
Recreational Use Statute applies to public land depends on the language of the statute
and on the case law of each individual state. (See private landowner liability, above )
Check your state's Recreational Use Statute and case law to see if public landowners
are protected.
The Federal Tort Claims Act
The Federal Tort Claims Act (FTCA) defines the scope of the federal government's
liability. Under the FTCA, the federal government is liable for negligence like a private
individual would be under the law of the jurisdiction (state) where the injury occurred.
State Tort Claims Acts (Governmental Immunity Statutes)
As mentioned above, a state's tort claims act defines the scope of governmental liability
(usually on a state, county, and municipal level). Some states follow the Federal Tort
Claims Act and hold public agencies to the same negligence standards as private
individuals. (e.g. Nebraska, New Jersey, North Dakota, Ohio, Pennsylvania) In these
states, it is likely that the courts have interpreted this to mean that public entities are
entitled to the same legal defenses that a private property owner would have in the same
circumstances-including the state's Recreational Use Statute. Therefore, in some states,
public agencies may use recreational use statutes and governmental immunity statutes
to escape liability for recreation user injuries.
Some states, however, do not hold public entities to the same standards as private
individuals. For instance, some courts reject the applicability of recreational use statutes
to public entities if the R.U.S. is inconsistent with other statutes that specifically limit or
extend landowner liability to public entities. In other words, if there is a specific statute
(i.e. a State Tort Claims Act) that addresses public landowner liability, it will most likely
be interpreted to govern even if a recreational use statute also seems to provide liability
protection to a public landowner. If the R.U.S. is silent on the issue, the State Tort
Claims Act may control. Again, this will vary from state to state.
Some states have gone beyond the R.U.S. and enacted recreational liability immunity
legislation specifically for public agencies. (e.g. Virginia, Kansas, Minnesota) Similarly,
California's State Tort Claims Act specifically provides immunity on public unimproved
lands.
Public landowner liability undoubtedly affects all users of public land. Most governmental
immunity statutes address recreational users as a whole without singling out mountain
bicyclists. Therefore, restricting access to mountain bicyclists for liability reasons is often
arbitrary and unfair. Unless a statute specifically addresses mountain bicycling as a
separate recreational use with independent liability concerns, there seems to be no
reason to restrict access to mountain bicycling while not doing the same to other
recreational users. It is therefore important for both recreational users and public parks
and recreation areas to be familiar with the state's immunity statutes and of court
decisions involving the applicability of these statutes. This puts both land mangers and
recreational user in better position to advocate for stronger (or clearer) legislation
protecting public entities from liability. This in turn will hopefully lead to more guided and
informed decisions regarding access for all public land uses.
Finally, it is important to remember that both recreational use statutes and other
statutory provision affecting governmental immunity will continually undergo changes by
the courts and in the legislature. The decline of sovereign immunity has lead states to
seek legal alternatives that protect them from liability in the form of State Tort Claims
Acts and Governmental Immunity Acts. These alternatives however, have yet to be
completely refined and it is for the courts to test their limits and meaning. It is therefore
important to check current case law in your state to see how the courts have defined the
limits (or extension) of the statutes.
Please see attached list of State Tort Claims Acts for cites to individual state statutes
State Tort Claims Acts Or Similar Statutes
Alabama: Code of Ala. §§ 41-9-62 et seq. Code of Ala. §§ 11-93-1 et seq.
Alaska: Alaska Stat. §§ 09.50.250 et seq.
Arizona: Ariz. Rev. Stat. Ann. §§ 12-820 et seq.
Arkansas: Ark. Code 1987 §§ 21-9-201 et seq.
California: California Tort Claims Act, Deering's Cal. Gov. Code §§ 810-996.6 et seq.
Colorado: Colorado Governmental Immunity Act, Colo. Rev. Stat. §§ 24-10-101 et seq.
Connecticut: Conn. Gen. Stat. Ch 53 §§ 4-141- et seq. (administrative claims
procedure).
Delaware: Delaware Tort Claims Act, Del. Code Ann. Tit. 10, Ch 40 §§ 4001 et seq.
(state and local).
District of Columbia: DCode §§ 1-1201 et seq.
Florida: Florida Tort Claims Act, Fla. Stat. §§ 768.28 et seq.
Georgia: Official Code of Ga. Ann. §§ 36-33-1 et seq.
Hawaii: Ha. Rev. Stat. §§ 662-2 et seq. (state).
Idaho: Id. Code §§ 6-901 et seq.
Illinois: Court of Claims Act, Ill. Rev. Stat. Ch 37 ¶ 439.8 (state); Ill. Rev. Stat. Ch 85 ¶ ¶
1-101 to 10-101 (local government units).
Indiana: Indiana Tort Claims Act, Ind. Code §§ 34-4-16.5-1 et seq.
Iowa: Iowa Tort Claims Act, Ch 25A (state); Tort Liability of Governmental subdivisions,
Ch 613A.
Kansas: Kan. Stat. Ann. §§ 75-6101 et seq.
Kentucky: Kentucky Board of Claims against the Commonwealth, Ky. Rev. Stat. §§
44.070 et seq.
Maine: Maine Tort Claims Act, Me. Rev. Stat. Ann. §§ 14-8101 et seq.
Maryland: Maryland Tort Claims Act, Ann. Code of Md., S.G. §§ 12-101 et seq. (state
government); CJ §§ 5-401 et seq. (local government).
Mass: Massachusetts Tort Claims Act, Ann. Laws of Mass., Ch 258.
Michigan: Mich. Comp. Laws §§ 691.1401-691.1415.
Minnesota: Minnesota Tort Claims Act, Minn. Stat. Ann. §§ 3.736 et seq. (state); Minn.
Stat. Ann. §§ 466.01 et seq. (local).
Missouri: Mo. Stat. §§ 537.600 et seq.
Montana: Montana Comprehensive State Insurance Plan and Tort Claims Act, Mont.
Code Ann. §§ 2-9-101 et seq. (state and local). Municipal Immunity is waived pursuant
to Mont. Code Ann. § 7-1-4125, which refers to the tort claims act.
Nebraska: Nebraska State Tort Claims Act, R.R.S. §§ 81-8,029 et seq.; Political
Subdivisions Tort Claims Act §§ 23-2401 et seq.
Nevada: Nev. Rev. Stat. §§ 41.031 et seq.
New Hampshire: NH Rev. Stat. Ann. §§ 541-B: 1 et seq. (administrative claims against
the state; political subdivisions excluded).
New Jersey: N.J.S.A. 59:1-1 et seq.
New Mexico: N.M.S.A. 27 §§ 41-4-1 to 41-4-27.
New York: CLS, Court of Claims Act § 8.
North Carolina: N Gen. Stat. §§ 143-291 to 143-300.1
North Dakota: NDCC Ch 32-12.1 (Chapter 303, S.L. 1977), applicable to political
subdivisions of state.
Ohio: Court of Claims Act, RC Ch 2743, applicable only to the state and its agencies or
instrumentalities. Political Subdivisions Act, RC Ch 2744, applicable to political
subdivisions of state.
Oklahoma: Oklahoma Political Subdivision Tort Claims Act, 51 Okla. Stat. Supp. §§ 151
et seq.
Oregon: Or. Rev. Stat. §§ 30.260-30.300; 30.265(2) (state and subdivisions).
Pennsylvania: 1 Pa. Consol. Stat. § 2310 (commonwealth); 42 Pa. Consol. Stat. §§ 8541
et seq. (local agencies); Pa. Rules of Civ. Proc. 2101 et seq. (commonwealth and
political subdivisions).
Rhode Island: Rhode Island Gen. Laws Ann. §§ 9-31-1 et seq. (state and subdivisions).
South Carolina: South Carolina Tort Claims Act, SC. Code §§ 15-78-10 et seq. (state
and local).
South Dakota: SD. Cod. Laws 3-21-1 et seq. (state).
Tennessee: Tennessee State Board of Claims Act, Tenn. Code Ann. §§ 9-8-101 et seq.
(administrative claims procedure against state); Tennessee Governmental Tort Liability
Act, TA. §§ 29-20-101 et seq., applicable only to units of local government and not to the
state).
Texas: Tex. Rev. Civ. Stat. Ann. Art. 6252-19.
Utah: Utah Governmental Immunity Act, Utah Code Ann. §§ 63-30-1 to 63-30-34.
Vermont: Vermont State Tort Claims Act, Vt. Stat. Ann. 12 §§ 5601 et seq. (state).
Virginia: Virginia Tort Claims Act, Code of Va. §§ 8.01-195.1 et seq. (state); Code of Va.
§ 8.01-222 (notice of claim to cities and towns).
Washington: Wash. Rev. Code Ann. § 4.92.090 (state and subdivisions).
WestVirginia: West Virginia Court of Claims Act, W.Va. Code §§ 14-2-1 et seq. (state);
Governmental Tort Claims and Insurance Reform Act, W.Va. Code §§ 29-12A-1 et seq.
(political subdivisions).
Wisconsin: Wis. Stat. Ann. § 893.80.
Conclusion
Liability issues weigh heavily in almost all land use decisions. Both private and public
landowners are acutely aware of the consequences that liability exposure can bring.
Fortunately, current legislation does much to alleviate liability concerns. Private
landowners can look to their state Recreational Use Statutes for liability protection.
Similarly, public landowners can refer to their state's Tort Claims Act (or Governmental
Immunity Act) and in some cases, to the state's Recreational Use Statute for protection.
Mountain bicyclists benefit greatly from these pieces of legislation. Individual
responsibility lies at the heart of these statutes because they shift the risks to the
recreational user in most cases. When landowners do not have to fear the possibility of
lawsuits, they are more likely to welcome mountain bicyclists (and others) to use their
land.
For an advocate for responsible mountain bicycling, knowledge of the laws affecting
landowner liability is an indispensable tool for a successful dialog among all recreational
users and landowners.
Sources For More Information
For more information regarding landowner liability, there is a variety of sources that may
be helpful. All (or most) levels of government in each state have an attorney's office that
should be able to provide more individual state information. Also, local land managers
and park rangers can be good sources. Of course, you can call IMBA for names and
numbers of local clubs and land managers. And finally, for the truly industrious, law
libraries have a wealth of information and usually have very helpful librarians to guide
those unfamiliar with how a law library works.
Bibliography
Research done using Westlaw, Lexis, A.L.R., C.J.S., and state statutes and their
annotations.
Stuart J. Ford, Wisconsin's Recreational Use Statute: Towards Sharpening the Picture,
Wisconsin Law Review, 1991.
James C. Kozlowski & Brett A. Wright, State Recreational Use Statutes and Their
Applicability to Public Agencies: A Silver Lining or More Dark Clouds?, Journal of Parks
and Recreation Administration
Jan Lewis, Recreational Use Statutes: Ambiguous Laws Yield Conflicting Results, Trial,
December 1991.
Ronald A. Kaiser & Brett A. Wright, Liability and Immunity: A National Assessment of
Landowner Risk for Recreational Injuries, Environmental Policy Group, Texas A & M
University, Department of Recreation, Park & Tourism Sciences.
Appendix: Chart of State Recreational Use Statutes
Landowner Liability
Tina Burghardt, IMBA
1996
downloaded from IMBA website NOV 2005
http://www.imba.com/resources/trail_issues/land_liability.html