Editor's Note: Adapted by Jason Robertson for American Whitewater with permission from the International Mountain Biking Association (IMBA). The original article was prepared for IMBA by Tina Burghardt in 1996, and is available at: http://www.imba.com/index.html.
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 whitewater boating as they can shift the burden of responsibility to boaters and away from private landowners and public land managers. Private landowners and public land mangers are more likely to welcome whitewater boating and other recreational activities if they are protected from liability. American Whitewater has always stressed personal responsibility for whitewater boating and this notion is supported 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 intended as 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.
Limitations of a Recreational Use StatutePublic Landowner Liability
Private Landowner Liability: Some Common Questions
A Model Statute
Federal Tort Claims ActConclusion
State Tort Claims Acts (Governmental Immunity Statutes)
Table of State Tort Claims Acts
Sources For More Information
Individual State Recreational Use Statutes
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. This article provides a general outline of how these laws operate and who qualifies for their protection.
"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 access to 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.
Recreational Use Statutes generally provide that a landowner does not owe, to one using his of her property for recreational purposes and without charge, either 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 their 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 a Recreational Use Statute, 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.
The principal question addressed by courts in personal injury and wrongful death litigation where a Recreational Use Statute 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 Recreational Use Statute 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 Recreational Use Statute to see how much protection it offers and how the state courts have interpreted it.
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.
In the states that include public entities as "owners" under their Recreational Use Statute, public land falls within the protection 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". Some states will follow closely the intent of the statute and include only those lands amenable to recreational use (for example, under Louisiana's Recreational Use Statute, 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).
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, whitewater boating would be considered a "recreational use" by most courts even if it is not specifically listed in the definition of "recreational uses" or "recreational activities."
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 willfully malicious conduct.
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.
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 that others had been burned there previously.
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.
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.
Q: I have a trail across my land and I want to open it to boaters, 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 American Whitewater (866-BOAT-4-AW). 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 parking area for river access 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 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 is not 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 am I liable for if I allow people to access the river from 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 access the river from 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.
Because Recreational Use Statutes can and do differ from state to state, boaters 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 boating without changing recreationists' 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 boaters 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 whitewater boating is considered a "recreational use" under the statute is to specifically include it in the definition. While it is hard to imagine whitewater boating as not being considered "recreational", its inclusion in the definition will ensure that no ambiguities arise. (Imagine, for example, a scenario in which a boater was injured while portaging 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. American Whitewater has always stressed the importance of boater responsibility and assumption of risk. Language from Montana's snowmobiler's statute might be incorporated into a Recreational Use Statute in order to articulate the notions of personal 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 charges a fee 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.
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 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 boaters as public land managers seek ways to avoid potential injuries and subsequent lawsuits.
Fortunately, there are laws 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 serves 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 (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.
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 Recreational Use Statute 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 Recreational Use Statute 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 Recreational Use Statute 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 boaters. Therefore, restricting access to boaters for liability reasons is often arbitrary and unfair. Unless a statute specifically addresses whitewater boating as a separate recreational use with independent liability concerns, there seems to be no reason to restrict access to whitewater boating 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 provisions affecting governmental immunity will continually undergo changes by the courts and 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
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.
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.
Boaters 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 boaters (and others) to use their land.
For an advocate for responsible whitewater boating, knowledge of the laws affecting landowner liability is an indispensable tool for a successful dialog among all recreational users and landowners.
For more information regarding landowner liability, there are 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. 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 these law libraries work.
American Whitewater also provides links to Individual State
Recreational Use Statutes.
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.