REC.

TRESPASS ACT STATE CASE LAW

Alabama.3
Alaska3
Arizona.. 3
Arkansas.4
California4
Colorado.4
Connecticut.5
Delaware.5
District of Columbia...5
Florida.5
Georgia5
Hawaii..6
Idaho7
Illinois..7
Indiana.7
Iowa.7
Kansas..8
Kentucky..9
Louisiana..9
Maine9
Maryland..10
Massachusetts...10
Michigan...10
Minnesota..11
Mississippi.12
Missouri.12
Montana.13
Nebraska.13
Nevada14
New Hampshire..15
New Jersey..16
New Mexico17
New York17
North Carolina.17
North Dakota...18
Ohio.18
Oklahoma.18
Oregon..19
Pennsylvania.19
Rhode Island.20
South Carolina...21
South Dakota.22
Tennessee...22
Texas..23

Utah25
Vermont..25
Virginia...26
Washington.26
West Virginia..26
Wisconsin27
Wyoming.27

Alabama

Clark v. Tennessee Valley Authority, 606 F. Supp. 130 (N.D.Ala.1985)

-Sections 35-15-20 through 35-15-28 apply to noncommercial public recreational
landowners and provide them with even tighter limitations than 35-15-1 through
35-15-5 as to their exposure to liability to recreational users; 35-15-20 through 3515-28 recognize a public policy in Alabama to encourage public owners to allow the
opening up and promotion of their facilities without exposing themselves to law suits.
Russell By and Through Russell v. TVA, 564 F.Supp. 1043 (N.D.Ala.1983)
-This section was enacted to insure that landowners were not to be held to a standard
of due care toward persons upon their land with permission for hunting, fishing and
recreational purposes.
-Licensee's entrance on the land carries with it no right to expect the land to be made
safe for his reception, but he must assume the risk of whatever may be encountered.
Once he is there, the law only requires the landowner to refrain from wantonly,
maliciously or intentionally injuring him; in other words, the landowner is not
liable unless he does some act which goes beyond mere negligence.
Poole v. City of Gadsden 541 So.2d 510 (Ala.1989)
-City and construction company which built boardwalk along banks of river in city
park, were shielded from prosecution for the wrongful death of a swimmer who
drowned after hitting his head on a submerged object while diving off the boardwalk.
George v. U.S., 735 F.Supp. 1524 (M.D.Ala.1990)
-In action for loss of consortium where alligator attacked swimmer in swimming area
of national park, where park officials had actual knowledge of the alligator and the
fact that he was large and had lost his natural fear of humans and was, therefore,
dangerous, and where swimmer had no such knowledge, defendant's defense
predicated on recreational use statute failed.
Ex parte City of Geneva, 707 So.2d 626 (Ala.1997), on remand 707 So.2d 631
-In order to achieve express purpose of recreational use statutes, those who permit
public upon their lands for noncommercial recreational purposes must not be
exposed to greater potential liability under recreational use statutory scheme
than they would have faced at common law.
Alaska
Arizona
Newman v. Sun Valley Crushing Co. 787 P.2d 623
Smith v. Arizona Board of Regents 195 Ariz. 214
-Carnival-type apparatus temporarily placed on university property, combining a
trampoline and bungee cord, did not constitute premises, nor was a student injured
on the apparatus a recreational user, within the meaning of the recreational use
statute, and thus, the statute did not apply to shield the university or related entities
from liability; the legislature did not intend to immunize a landowner for injuries on

such a transient apparatus, and the student was not engaged in the type of
recreational activity contemplated by the statute.
-

Arkansas
Mandel v. U.S. 545 F.Supp. 907(overturned)
-The statute in effect only required a showing that the condition was dangerous. The
statute now requires the condition to be ultra-hazardous.
Jenkins v. Arkansas Power & Light Co. 140 F.3d 1161
-Arkansas recreational use statute, which provided immunity from liability to
landowners who opened their lands to public recreational use, applied to electric
utility which opened its lake to public pursuant to its license from Federal Energy
Regulatory Commission, notwithstanding injured swimmer's claim that applying
statute to utility defeated goal of statute of encouraging landowners to open their land
through immunity.
-Malicious conduct exception to immunity provided under Arkansas recreational use
statute to landowners permitting public recreational use of their land did not apply to
utility who opened lake to public, based on its failure to mark or warn users of
submerged island; given obvious danger associated with diving into water without
first testing its depth, shallow area caused by island was not ultra-hazardous condition
and failure to warn was at most negligent.
California
Graves v. U.S. Coast Guard 692 F.2d 71
-Federal government was not shielded from liability for injuries sustained when
plaintiff was injured as he dove off cabana into river under California statute
restricting liability of landowners who allow public to use their land for recreation,
where cabana was located on property leased from government and consideration
was given in exchange for permission to camp on property.

Colorado
Smith v. Cutty's, Inc., App.1987, 742 P.2d 347.
-Fact that individual injured on land and his group were not paying customers of
resort which owned land did not render individual's use of land unrelated to
commercial activity being carried on there, such as would preclude injuries from
being within exception to general statutory relief for landowner from liability for
injuries received by people using property without charge for recreational purposes.
- There must be nexus between commercial or business enterprise and use giving rise
to injury to bring injury within exception to general relief afforded landowners for

injuries received by people using property without charge for recreational purposes,
where property is owned by commercial or business enterprise.
Connecticut
Conway v. Town of Wilton 238 Conn. 653
-Municipality and its employees do not come within term owner of land, as used in
Recreational Land Use Act, and thus are not entitled to immunity under Act for
injuries sustained on municipal land available to public for recreational purposes
Delaware
Gibson v. Keith 492 A.2d 241
-Invitation or permission direct or indirect, extended by landowner to public to enter
without charge for recreational purposes is sine qua non for invoking the Recreational
Use Act's protective benefits, but to secure such benefits, owner is not required to
make explicit offer of land or water area for recreational use.
-Landowner who undertakes affirmatively either to warn or bar public from entry
cannot assert the Recreational Use Act as bar to tort claim brought by person who has
entered premises either with knowledge or in disregard of owner's efforts to keep
public out.
-Land or water area's particular conduciveness to use and owner's positive efforts to
make such areas available without charge to public for recreational use determine
landowner's right to invoke protection of the Recreational Use Act; however,
application of Act is limited to recreational use of essentially undeveloped land and
water areas, primarily rural or semirural land, water or marsh, and Act does not apply
to urban or residential areas improved with swimming pools, tennis courts and the
like.
District of Columbia
Florida
Abdin v. Fischer 374 So.2d 1379
-In boater's action against lessee of boat ramp and lessee's principal for injuries
sustained when the boater slipped and fell on algae which had grown on the ramp,
genuine issue of material fact existed as to whether commercial activity was taking
place on property alleged by lessee and its principal to be recreational park area so
as to prevent application of statute limiting liability of owners or lessees who provide
public with park area for outdoor recreational purposes, thus precluding summary
judgment.

Georgia
McGruder v. Georgia Power Co. 191 S.E.2d 305
North v. Taco Hills Inc. 286 S.E.2d 346
-Where property owner neither invited nor charged for the use of land for recreational
purposes, plaintiff, who slipped and fell on a roll of metal fencing or reinforcing bar
concealed in heavy underbrush while using the property for recreational purposes,

could not recover for injuries on ground that property owner failed to warn him of the
danger or that conditions on property constituted a private nuisance maintained by
property owner.
Bourn v. Herring 225 Ga. 67 (1969)
-Corporation which made picnic grounds and lake resort available for Sunday school
picnic that 14-year-old boy was attending when he drowned was owner within act
limiting liability of owners of land and water areas who make such areas available to
public for recreational purposes.
-Benefits derived by corporation from allegedly making picnic grounds and lake
available for Sunday school picnic, at which 14-year-old boy drowned, for
advertising purposes and to promote sale of corporation's products were not a
charge which would make such corporation and its general manager liable for other
than wilful and malicious failure to guard or warn against dangerous condition under
act limiting liability of owners who make land and water areas available to public for
recreational purposes.
Anderson v. Atlanta Committee for Olympic Games 273 Ga. 113
-The Recreational Property Act (RPA), providing immunity to owner who made
property available without charge to public for recreational purposes, was not
unconstitutionally vague as applied to suits against local Olympic committee, as
lessee of Centennial Olympic Park property from public authority, and against
sublessee of area within park, for wrongful death and personal injuries caused by
bombing in park during 1996 Olympic Games; RPA provided fair notice that park
created to celebrate spirit of historic athletic and cultural event and to provide
gathering place for visitors was available to the public for recreational purposes.
-The Recreational Property Act (RPA), providing immunity to owner who made
property available without charge to public for recreational purposes, did not violate
due process or equal protection clauses; RPA did not disadvantage a suspect class or
interfere with fundamental right, and was rationally related to legitimate
governmental purpose of making recreational property more accessible to the public.

Hawaii
Howard v. United States 181 F.3d 1064 (applying Hawaii law)
-That harbor and dock on which sailing student was injured was not open to
general public, but rather was open only to military personnel, their families, and
guests, did not preclude government from qualifying for immunity from
negligence liability under Hawaii recreational use statute, which generally granted
immunity to landowners who allowed any person to use their property for
recreational purposes without charge; statute did not require landowner to allow every
member of general public access and use of land.
Proud v. United States 723 F.2d 705 (applying Hawaii law)

-The exception of government land from Hawaii's recreational use statute did not
render the federal Government liable under the Federal Tort Claims Act for injuries
sustained by a minor in diving accident in national park because the Government's
liability under the Act was that of a private individual, regardless of what a state
intended that liability to be.
Idaho
Johnson v. Sunshine Mining Co., Inc. 106 Idaho 866
-Motorcycle riding on private land was activity for recreational purposes within
meaning of statute which limits landowner's liability to nonpaying recreational users.
-Statute which limits landowner's liability to nonpaying recreational users does not
distinguish between active or passive conduct of owner in creating hazardous
condition.
Illinois
Miller v. U.S. 597 F.2d 614
-Illinois Recreational Area Licensing Act applied to areas such as national wildlife
refuge which were maintained primarily for recreational purposes while Illinois
Recreational Use of Land and Water Areas Act applied only to lands which were used
on casual basis for recreational purposes; thus, United States was not entitled to
protection against liability provided to landowner under Recreational Use Act.
-the central purpose of the Recreational Use Act is to encourage owners of land to
make land and water areas available to the public for recreational purposes . . . . By
contrast, the Licensing Act applies to areas of land that are specifically maintained for
recreational use
Indiana
Cunningham v. Bakker Produce, Inc. 712 N.E.2d 1002
-By denying certain persons legal recourse for personal injury or property damage,
the Indiana Recreational Use Statute is in derogation of common law and must
accordingly be strictly construed against limiting the claimant's right to bring suit.
-Indiana Recreational Use Statute shielded owner of unimproved parcel from liability
for injuries to six-year-old child who was struck on head by tree limb, previously cut
down by owner, that child and older brothers were attempting to move prior to
playing baseball; injuries resulted from acts of child's brothers in moving limb so they
could play baseball in exactly same area where they had previously played, not from
any negligence on owner's part.
Iowa
Hegg v. U.S., C.A.8 (Iowa)1987, 817 F.2d 1328.
-Definition of land in subd. 1 of this section was intended to distinguish between
rural and urban land and recreational area near reservoir was within the scope of this
section.

-Plaintiff who was using swing-set when she was injured was engaged in a
recreational use for purposes of this section, even though swinging is not specifically
mentioned in the list of activities included within subd. 3.
Op.Atty.Gen. (Spencer), April 26, 1977.
-A landowner is exempt from liability under this chapter for injuries occurring on his
properly sustained by those using his property for snowmobiling recreational
purposes where landlord charges no consideration for such land use; landowner may
be liable to those recreationally using his property for willful or malicious failure to
guard or warn and may be liable for the attractive nuisance created by such
recreational activities which injure children thereby attracted.
Peterson v. Schwertley, 1990, 460 N.W.2d 469
-This section designed to encourage property owners to make land available for
recreational uses, by relieving property owners of any duty to keep premises safe for
entry or use by others for recreational purposes, did not require, either explicitly or
implicitly, that such use be permissive; this section also relieves property owners of
liability for injuries sustained by trespassers.
Scott v. Wright, 1992, 486 N.W.2d 40.
-Statute relieving property owners of duty of care if property is used for recreational
purposes did not apply where action against property owner rested on vicarious
liability for tractor driver's alleged negligence in connection with hayride and not on
duties addressed in recreational use statute; intervening act of negligence on part of
the driver took case outside purview of recreational use statute.
Bird v. Economy Brick Homes, Inc., 1993, 498 N.W.2d 408.
-Landowner did not willfully or maliciously fail to guard against dangerous
condition, for purposes of exception to landowner immunity in recreational land use
statute, by placing cable across access road.
Kansas
Bingaman v. Kansas City Power & Light Co., 1993, 1 F.3d 976
-Under Kansas Recreational Use Statute (RUS), landowner who bars public access to
its property has not directly or indirectly invited or permitted public to use that
property for recreational activities and thus is not entitled to immunity under statute.
K.S.A. 58-3201 to 58-3207.
-In wrongful death action, issues of material fact existed as to whether power
company invited or permitted public to use area of lake in which fisherman drowned,
for purposes of determining whether company was covered by Kansas Recreational
Use Statute (RUS), precluding summary judgment; although area may technically
have been part of easement agreement allowing lake to be used by public for
recreational purposes, testimony suggested that fishermen were routinely removed
from area, and company conceded that it installed exclusionary buoys and fencing to
keep public out of area.

Kan. Op.Atty.Gen. No. 2003-27

-Under the Land and Recreational Area Act, an owner of agricultural land may
operate under statutory protection from liability for ordinary negligence whether or
not a fee is charged for recreational use of the land, but an owner of nonagricultural
land operates under this statutory protection only if a fee is not charged. "Recreational
purpose" includes, but is not limited to, hunting, fishing, swimming, boating,
camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter
sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites.
Klepper v. City of Milford, Kansas, 1987, 825 F.2d 1440
-Term "willful," as used in Kansas recreational use statute, is defined as intentionally
causing injury or doing wrong, rather than intentionally acting or failing to act in way
that merely allows wrong to occur. K.S.A. 58- 3206
Kentucky
Sublett v. United States 688 S.W.2d 328 (Applying Kentucky Law)
-United States was owner of public land under control of Army Corps of Engineers
for purposes of statute limiting liability of landowner who makes land available to
public for recreational purposes without payment of fees.
-Statute providing that owner of land made available to public for recreational
purposes without payment of fees is under no general duty and that person entering
upon premises takes land as he finds it but, that owner of land would be liable if
failure to guard against or warn of dangerous condition is willful or malicious, creates
class of users which are neither trespassers nor invitees and does not thereby
unreasonably interfere with constitutionally guaranteed right to recovery and access
to courts.
Louisiana
Ratcliff v. Town of Mandeville 502 So.2d 566
-For immunity provided by statute to those who open up their property for
recreational use to be applicable to given set of facts, property where injury
occurred must be undeveloped, nonresidential rural or semi-rural land area and
injury itself must be result of recreation that can be pursued in true outdoors.
-Town that owned boat dock located in recreational area within populated city,
adjacent to frequently travelled lakeshore drive and within stone's throw of residential
area, was not free from liability for injuries occurring on that dock under statute
providing immunity to those who opened up their property for recreational use.
Maine
Dickinson v. Clark (2001) Me., 767 A.2d 303
-Recreational Use Statute did not bar minor injured while operating log splitter from
bringing negligent supervision of machinery claim against landowner, as statute only
limited claims alleging premises liability, and minor did not allege failure to disclose
hazardous activity on land.
Coffin v. Lariat Associates (2001) Me., 766 A.2d 1018

-A landowner owes a duty of reasonable care to provide safe premises to all persons
lawfully on the land, and a duty to use ordinary care to ensure the premises are safe
and to guard against all reasonably foreseeable dangers, in light of the totality of the
circumstances.
Stanley v. Tilcon Maine, Inc. (1988) Me., 541 A.2d 951
-Limitation of liability under this section may apply to owners who manifest intent
that property not be used for recreational purposes.
-This section precluded 14-year-old injured while tobogganing in sandpit from
recovery for injuries from owner and operator of sandpit under attractive nuisance
doctrine.
-Limitation of liability for recreational use created by this section applies to claim of
minor entering or using land of another for recreational purposes.
Robbins v. Great Northern Paper Co. (1989) Me., 557 A.2d 614
Lessee's payment of $95 per year to lessor, which represented a fee for lessee's right
to use leased lot for certain purposes but which did not entitle him to a greater right
than held by general public to pursue recreational activities on lands other than
his lot, did not constitute consideration so as to fall within an exception to
recreational immunity rule.
Maryland
Fagerhus v. Host Marriott Corp., 2002, 795 A.2d 221, 143 Md.App. 525
-A property manager with a contractual duty to manage and maintain premises that a
landowner makes available for recreational use is an owner who is entitled to
invoke the protections of recreational use statute
-Phrase other interest in real property, as used in recreational use statute that
confers protection from negligence liability on the owner of an estate or other interest
in real property, includes nonpossessory interests that give a person control of the
premises, even if that control is not the exclusive or primary control usually exercised
by owners of a fee or leasehold estate.
Massachusetts
Seich v. Town of Canton 426 Mass 84 (1997)
-Recreational use statute applies equally to publicly and privately owned land.
-Term land, as used in recreational use statute, includes indoor areas.
Michigan
Burnett v. Adrian 326 N.W.2d 810
-In action under recreational use statute, complaint adequately alleged claim for
willful and wanton misconduct where complaint included allegation of facts
essentially equivalent to assertion that city, in its acts and omissions, was indifferent
to likelihood that catastrophe would come to member of public using lake, and such
alleged indifference was essentially equivalent to willingness that such catastrophe
occur.

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Estate of Thomas v. Consumers Power Co. 231 N.W.2d 653

-Affirmed in part, reversed in part. Courts construction of Michigan RTA upheld.
Court held that Statute governing liability for injuries to gratuitous recreational users
of land does not change the common-law duty of owners and occupiers of property
owed to those who come upon such property as mere licensees.
Veeneman v. State 373 N.W.2d 193
-Negligence action brought by personal representative of decedent who was fatally
injured when dune buggy in which he was riding overturned in state park was barred
by governmental immunity, as State's operation of park was an activity which was
expressly mandated or authorized by statute, and the activity was not proprietary
in nature and did not come within any of the statutory exceptions to governmental
immunity.
Minnesota
Kastner v. Star Trails Ass'n, App.2003, 658 N.W.2d 890
-Snowmobile trail-user organization was owner entitled to recreational-use
immunity from personal injury actions brought by two snowmobilers, where
organization controlled land on which trails ran.
Louis v. Louis, 2001, 636 N.W.2d 314.
-The duty of reasonable care is imposed on both the landowner and the entrant.
-While a landowner generally has a continuing duty to use reasonable care for the
safety of all entrants, this duty is not absolute.
Watters v. Buckbee Mears Co., App.1984, 354 N.W.2d 848.
-Where owners of property, formerly used to mine gravel, did not directly or
indirectly invite or permit people to use the property for recreational purposes, the
recreational use statute did not apply to preclude an action by trespassers against the
landowners for injuries sustained while they were driving on the land.
Hovet v. City of Bagley, 1982, 325 N.W.2d 813.
-Minnesota recreational use statute did not apply to land owned by a city and
therefore city could not rely on the statute to avoid liability for injuries sustained due
to allegedly negligent operation of a municipal beach.
Razink v. Krutzig, App.2008, 746 N.W.2d 644
-Recreational land use statute, providing that a landowner who gives permission for
recreational trail use of land is entitled to immunity from a trespasser action, required
that permission given for recreational trail use be oral or written, and thus statute did
not preclude trespasser action, brought by snowmobile operator who was injured
when he collided with a sign on landowner's land while using the land as a
recreational trail, against landowner, landowner's agent, and parties who had option
agreement to buy the land, who had passively permitted recreational trail use but who
had not given any oral or written permission for the use.

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Hughes v. Quarve & Anderson Co., 1983, 338 N.W.2d 422.

-In order for 16-year-old trespasser to recover from landowner for injury sustained
from artificial dangerous condition, trespasser was required to establish that place
where condition existed was one upon which owner knew or had reason to know
children were likely to trespass, that condition was one owner knew or had reason to
know and which he realized or should have realized would involve unreasonable risk
of death or serious injury to children, that children would not discover condition or
realize risk involved, that utility to owner of maintaining condition and burden of
eliminating danger were slight as compared to risk, and that owner failed to exercise
reasonable care to eliminate danger.
Mississippi
Dumas v. Pike County, Miss. (S.D.Miss. 1986) 642 F.Supp. 131
-Nothing in Mississippi statute providing that citizen shall have the right to engage in
water sports in public waterways at their own risk relieved landowner of liability for
maintaining a dangerous condition on his land.
-Provision of Mississippi statute entitled Application of Chapter, providing that
chapter of statute protecting from liability, landowner who allowed his land to be
used by public, would not be available unless public notice of availability of lands
for public use was published once annually in newspaper of general circulation,
and thus landowner's failure to comply with statutory notice provisions resulted in
protections of statute not being available to him.
Missouri
State ex rel. Young v. Wood (Sup. 2008) 254 S.W.3d 871.
-To invoke the Recreational Use Act (RUA), the general requirements are: (1) an
owner of the land; (2) entry upon the land; (3) entry upon the land without charge;
and (4) entry for recreational use.
-Immunity under the Recreational Use Act (RUA) does not require that land be
opened to the entire general public.
-Under the Recreational Use Act (RUA), farmers, who gave permission, separately,
to two hunters to enter the farm for the purpose of hunting wild turkeys, owed no duty
to warn first hunter, who was accidentally shot and killed by second hunter, that
second hunter was present on the farm.
Wilson v. U.S., C.A.8 (Mo.)1993, 989 F.2d 953
-Fee of two dollars per night paid by boy scouts for right to stay overnight in building
on Fort Leonard Wood was not a charge and did not deprive United States of
benefit of Missouri recreational use statute in suit under Federal Tort Claims Act for
death of one boy scout and injury to two others while on the post.
Foster v. St. Louis County (Sup. 2007) 239 S.W.3d 599.
Missouri Recreational Use Act did not violate equal protection by granting immunity
to landowners who open land to public at no charge for recreational use while not
extending liability to landowners who charge fee to access land; classification was

12

rationally related to legislative purpose to promote free use of land for recreational
purposes.
Lonergan v. May (App. W.D. 2001) 53 S.W.3d 122
-Portion of lake where boat accident occurred did not fall under noncovered land
exception to the Recreational Use Act (RUA), and thus electric utility company that
owned lake had immunity against negligence action by relatives of boat passenger
killed when boat collided with dock on lake, although another portion of the lake was
used by company for commercial purposes, where part of lake where commercial
activity was carried on was far from accident site, company opened lake to public free
of charge for recreational purposes, and passengers came to lake intending to use it
free of charge for recreational purposes.
-In enacting Recreational Use Act (RUA), legislature meant to protect lake owners
from liability when accidents occur on the lake by those who are engaging in boating
activities, water sports or any other pleasure on the water.
Fields v. Henrich (App. W.D. 2006) 208 S.W.3d 353
-Recreational Land Use Act (RUA) did not apply to action brought against
landowners by parents, whose child was visiting landowners' neighbor and wandered
off and subsequently was found unconscious in sewage pond located on landowners'
property and later died, and therefore, submission of verdict directing instructions
consistent with RUA was erroneous; landowners' property was an eight-acre
residential lot, they maintained unfenced sewage aeration pond at front of their
property, and they did not allow their front yard or any part of their lot, including
pond, to be used for recreational purposes.
Henderson v. U.S., C.A.8 (Mo.)1992, 965 F.2d 1488
Genuine issue of material fact, as to whether release of water through dam was
ultrahazardous activity, precluded summary judgment on issue of whether Army
Corps of Engineers negligently failed to guard or warn against ultrahazardous
condition within meaning of Missouri Recreational Use Statute.
Montana
Saari v. Winter Sports Inc. 314 Mont 212
- Family of deceased child brought negligence action against ski resort owners,
asserting, inter alia, wrongful death, negligence, and attractive nuisance theories of
liability. The District Court, 11th Judicial District, Flathead County, Ted O. Lympus,
J., granted summary judgment in favor of owners. Family appealed. The Supreme
Court held that: (1) owner was immune from liability pursuant to recreational use
statute; (2) owner's actions did not constitute willful or wanton misconduct, so as to
preclude application of recreational use statute to shield owner from liability; and (3)
recreational use statute does not require that property be available for public use in
order for landowner to be shielded from liability
Nebraska

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Cassio v. Creighton University, 1989, 233 Neb. 160, 446 N.W.2d 704.
-Recreational Liability Act does not apply to independent indoor recreational
facilities, including indoor swimming pools.
Bronsen v. Dawes County, 2006, 722 N.W.2d 17, 272 Neb. 320
-Attendee of historical fur trade celebration, who stepped into a hole or depression in
county courthouse lawn, fell, and broke her ankle, was "picnicking," which was a
recreational purpose under Recreational Liability Act (RLA), and thus private entity
that organized event was immune from liability under RLA for attendee's negligence
claim; just prior to attendee's accident, she and her family obtained food and
beverages for lunch, took those items to picnic table located on courthouse lawn, and
sat and visited while consuming their food, and attendee was in process of disposing
of trash associated with meal when accident occurred.
-Limited immunity afforded to owners of land by the Recreation Liability Act was
intended to apply only to private landowners who make their property available to the
public for recreational purposes, and not to governmental entities
-County, as a governmental entity, was not immune from liability, under the
Recreation Liability Act, for injuries sustained by attendee of historical fur trade
celebration, who stepped into a hole or depression in county courthouse lawn, fell,
and broke her ankle.
Dykes v. Scotts Bluff County Agr. Soc., Inc., 2000, 617 N.W.2d 817, 260 Neb. 375
-Viewing of livestock exhibits at a county fair is not a "recreational purpose" for
purposes of statute limiting liability of property owners for injuries to persons using
property for recreational purposes.
Holden By and Through Holden v. Schwer, 1993, 242 Neb. 389, 495 N.W.2d 269
-Recreation Liability Act does not require landowner to fully dedicate his property to
public before he comes under protection of Act, but, rather, in order to facilitate
purpose of Act, landowner need allow only some members of public, on casual basis,
to enter and use land for recreational purposes to enjoy protection of Act.
Nevada
Frasure v. U.S., 2003, 256 F.Supp.2d 1180
-Although the Nevada recreational use statute does not specify what type of property
is covered, the intent of the legislature is that the property should be rural, semi-rural,
or nonresidential, so that it can be used for recreation.
- Under Nevada law as predicted by the district court, the test to determine whether a
landowner willfully failed to guard or warn against a dangerous condition, as
exception to immunity under the Nevada recreational use statute, asks whether the
landowner had: (1) actual or constructive knowledge of the peril to be apprehended;
(2) actual or constructive knowledge that injury is a probable, as opposed to a
possible, result of the danger; and (3) conscious failure to act to avoid the peril.
Boland v. Nevada Rock and Sand Co., 1995, 894 P.2d 988, 111 Nev. 608

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-All that is required for recreational use statute to apply is that the defendants be
owners, lessees, or occupants of premises where plaintiff is injured, that land be of
the type that legislature intended to be covered, and that plaintiff have been engaged
in the type of activity which legislature intended to cover. N.R.S. 41.510.
-Commercial gravel pit which was described as big piles of sand in the middle of flat
nowhere was the type of land intended to be covered by recreational use statute.
- To be covered by recreational use statute, property should be rural, semi-rural, or
nonresidential so that it can be used for recreation.
Neal v. Bently Nevada Corp., 1991, 771 F.Supp. 1068
-Unless willful or malicious failure to guard or warn against dangerous condition can
be shown, landowner does not owe duty even to inspect its rural, semirural or
nonresidential property to persons who may enter thereon for recreational purposes.
- To determine landowner's constructive knowledge that rope swinging on his
property existed and that conditions at site made rope swinging dangerous, court
would use objective standard whether reasonable person under same or similar
circumstances as those faced by the actor would be aware of the dangerous character
of the conduct.
- Under Nevada law, for purpose of recreational use statute, willful misconduct is
intentional wrongful conduct, done either with knowledge that serious injury to
another will probably result, or with wanton or reckless disregard of possible results.
Ducey v. U.S., 1983, 713 F.2d 504
-Consideration exception to Nevada recreational use statute is not limited to situations
involving strict charging of fee for permission to recreate.
-Consideration, within meaning of consideration exception to Nevada recreational use
statute, must be tendered directly or indirectly to person who has power to grant or
deny permission to participate in recreational activities.
New Hampshire
Collins v. Martella, 1994, 17 F.3d 1
-The New Hampshire recreational use statutes do not contain any language
suggesting a requirement that the land at issue must be either undeveloped or open to
the general public.
Kantner v. Combustion Engineering, 701 F. Supp. 943 (D.N.H. 1988).
-This section limits, but does not eliminate, liability of owners, lessees, and occupants
to recreational users, while encouraging increased use of recreational areas without
charge to users.
- Where evidence in action seeking damages arising out of drowning deaths indicated
that defendants had some ability to limit access to river where drownings occurred,
fact that public had a pre-existing right to use river did not preclude application of
this section.
Estate of Gordon-Couture v. Brown (2005) 152 N.H. 265, 876 A.2d 196

15

-The terms others and another in the recreational use statute providing that
landowners who opened up their property for hunting, fishing, trapping, water sports,
and other activities owed no duty of care to those who entered the property to engage
in such activities means those persons who are members of the general public, and
does not extend to persons who are personally invited onto the property by the
landowner for private activities.
Kenison v. Dubois (2005) 152 N.H. 448, 879 A.2d 1161
-Non-profit snowmobile club that maintained trail and operator of club's grooming
machine were not occupants under recreational-use statutes and thus were not
immune from liability regarding claim that arose from fatal collision between
snowmobiler and machine; club and operator had neither ability nor authority to make
land available for recreational purposes, but rather merely had ability and authority to
make that land more easily usable than it might otherwise have been.
New Jersey
Hallacker v. National Bank and Trust Co. 806 F.2d 488
-New Jersey statute, which precludes grant of immunity to landowner of recreational
park, if permission to engage in sport or recreational activity on premises is granted
for consideration, did not require injured visitor to pay consideration in order to
enjoy protection from exception to grant of immunity and, therefore, applied due
to payment of consideration by cottage lessees whose guests were permitted to use
cottage and whose guests invited injured visitor.
Krevics v. Ayers 358 A.2d 844
-The Landowner's Liability Act was intended to protect landowners from liability
only when it would be unreasonable to expect the landowner to maintain supervision
over the property in question, and the key is the size and nature of the property as
well as the quality of the hazard.
-Size of 11-acre tract of woodland was such as to qualify its owner for protection
under the Landowner's Liability Act, and the recreational activity of motorbiking fell
within the requirement of a sport and recreational activity so as to invoke the
protection of the Act; but the quality of the hazard created by landowner in placing
a cable across the motorbike trail was such that landowner was not entitled to invoke
the protection of the Act with respect to injuries sustained by person who was riding
along trail on motorbike and came in contact with the cable at dusk, when the cable
was indistinguishable from the surrounding woodland.
-Under the Landowner's Liability Act, permission granted to use lands for sport and
recreational activity does not include assurance that the premises are safe for such
use, nor does it raise licensee to the status of an invitee; but such protections do not
apply when the landowner deliberately creates the hazard.
Tallaksen v. Ross 167 N.J. Super 1
-Despite land's zoning classification as residential lands and its proximity to
developed residential areas and fact that ice on which infant plaintiff fell resulted
from freezing of waters diverted to land by man-made drains, landowner was immune

16

from liability by virtue of Landowner's Liability Act for injuries sustained by infant
plaintiff while on privately held undeveloped land for recreational purposes.
New Mexico
Maldonado v. U.S., 1990, 893 F.2d 267
-New Mexico recreational use statute applied to lands owned by federal Government
and set aside for recreational purposes.
Lucero v. Richardson & Richardson, Inc., 2001, 131 N.M. 522, 39 P.3d 739
-Phrase or any other recreational purpose in recreational use statute, which limits
liability of landowners who allow the public to use their land for hunting, fishing,
trapping, camping, hiking, sightseeing, or any other recreational use, did not include
organized competitive team sports, and thus public school was not immune from
personal injury claim by parent injured on school grounds during organized baseball
game, where other activities listed in recreational use statute were outdoor
recreational activities, not structured contests with rules, uniforms, and coaches, and
recreational statute was placed within game and fish acts.
New York
Schoonmaker v. Ridge Runners Club 99 Inc. 500 N.Y.S.2d 562
-Membership dues paid to recreation club in exchange for rights to use property, to
cut trees, and to take wood from club's property constituted consideration for
permission of members to cut trees which injured members' guest on club's property
and, therefore, brought recreation club within exception to immunity for injuries
caused by noncommercial woodcutting on its property if permission was granted for
consideration.
Hulett v. Niagra Mohawk Power Corp. 1 A.D.3d 999
-In action seeking damages for injuries sustained by infant plaintiffs when they were
struck by trains operated by Railroad defendants, after having ridden their bicycles on
paths and access roads on adjacent property, cause of action alleging that Railroad
defendants were negligent for failing to prevent access to their property dismissedGeneral Obligations Law 9-103 (1) (a) grants immunity for ordinary negligence to
landowners who permit members of public to come on their property to engage in
certain recreational activities, including bicycle riding-activity that infant plaintiffs
were engaged in at time they were injured, i.e., walking across tracks, was
sufficiently related to their bicycle riding such that they were engaged in covered
activity at time of accident-further, based on evidence of past recreational use,
property was suitable for bicycle riding.
North Carolina
Estate of Ledford ex rel. Jarnigan v. U.S., 2004, 299 F.Supp.2d 544
-Under North Carolina's recreational use statute, landowner has no duty to warn
trespassers or indirect invitees of artificial or unusual hazards on premises of which
landowner is aware.

17

-North Carolina's recreational use statute, which provides that landowner allowing
others to use land for educational or recreational purposes without charge owes such
persons same duty of care as that owed to trespasser, imposes upon landowner duty to
refrain from willful or wanton infliction of injury.
-To establish willful injury, under North Carolina law, there must be actual
knowledge, or that which the law deems to be the equivalent of actual knowledge, of
the peril to be apprehended, coupled with a design, purpose, or intent to do wrong and
inflict injury.
Clontz v. St. Mark's Evangelical Lutheran Church, 2003, 157 N.C.App. 325, 578
S.E.2d 654, review denied 357 N.C. 249, 582 S.E.2d 29
-Landowners who allow their land to be used for recreational purposes owe a duty to
refrain from the willful or wanton infliction of injury.
-Landowner gratuitously permitted church members to use his farm, which was
generally used for routine farming activities, for recreational purposes, and thus
landowner had no duty except to refrain from willfully or wantonly inflicting injury,
where there was no indication that purpose of invitation was to promote a commercial
enterprise.
North Dakota
Cudworth v. Mid Continent Communications 380 F.3d 375
-North Dakota's recreational use immunity statute, as predicted by the Court of
Appeals, did not condition statutory immunity on landowner's opening of property
for public recreational use;
-fact that portion of rope barrier across prairie road may have been illegal did not
affect defendant's immunity from liability for conditions and structures on his land;
-North Dakota's recreational use immunity statute does not explicitly require that
landowners open property to public use before receiving immunity, nor does it
specify that immunity applies only where entrants are invitees or licensees.
Ohio
Moss v. DNR 62 Ohio St.2d 138
-Term premises as used in statutes granting owner, lessee or occupier of premises
immunity from suit by recreational user who pays no fee includes state-owned lands.
-Where recreational user of state-owned lands pays fee or consideration for such use,
state is not immune from liability.
-A person is not a recreational user as defined in statutes granting owner, lesser, or
occupier of premises immunity from suit by recreational user of premises if such
person pays a fee or consideration to enter upon the premises to engage in
recreational pursuits.
-Parties who did not pay any fee or consideration to enter state-owned lands to engage
in recreational pursuits were recreational users even though they made other
purchases and state was immune from liability for injuries sustained by such parties.
Oklahoma

18

Hughey v. Grand River Dam Authority, Okla., 897 P.2d 1138 (1995)
-In light of Government Tort Claims Act's (GTCA) requirement that government and
private tort liability be coequal or coextensive, Grand River Dam Authority could
claim immunity afforded under Recreational Land Use Act (RLUA).
- To be entitled to immunity under Recreational Land Use Act (RLUA) type of
commercial activity which takes landowner out of purview of immunity has to be
connected with invitee's recreational use of lands or waters.
Mustain v. Grand River Dam Authority, Okla., 68 P.3d 991 (2003)
-Dam authority's collection of dock permit fees and other miscellaneous rents did not
create profit-related nexus to admitted public's presence on premises, for
purposes of exception to Recreational Land Use Act for commercial or other forprofit endeavors, where dock permit fees were issued against, and paid solely by,
dock owners, not by admitted public, boaters could launch water craft onto lake
without using either public or private dock, and authority's enabling legislation
required that public's recreational use of water and land be without charge.
Oregon
Waggoner v. City of Woodburn 196 Or.App. 715, 103 P.3d 648
-Statutory immunity for owner of land used for recreational purposes is not limited to
rural and undeveloped land, but also applied to city park so as to immunize city from
liability for injuries to person who was injured while using swing at park.
Tijernia v. Cornelius Christian Church 273 Or. 58
-By defining the word land, in statute relating to public recreational use of private
lands, to mean, inter alia, agricultural land, legislature intended to limit application
of statutes and land holdings which tended to have some recreational value but which
would not be susceptible to adequate policing or correction of dangerous conditions,
so that agricultural land should be interpreted narrowly in light of the legislative
purpose.
-Defendant church's land, on which injury occurred to plaintiff during softball game,
was not agricultural land so as to immunize church from liability for dangerous
condition under statute relating to public recreational use of private lands, since such
land was not used for commercial farming, the grain which grew on it was volunteer
and intermixed with weeds, and since the crop had been cut to comply with fire
regulations but was not harvested until 1974, after initiation of lawsuit, and then only
in the sense that person who cut it was allowed to take it away in return for his labors.
Denton v. L.W. Vail Co., Inc. 23 Or. App. 28
-Road construction contractors and Department of Transportation breached no duty to
trespasser-motorcyclist, who rode into a barbed wire fence stretched across one end
of project, by putting up the fence or by not posting some kind of warning that the
fence was there.
Pennsylvania
Stone v. York Haven Power Co. 561 Pa. 189 (2000)

19

-The intention of the Legislature to limit the applicability of the Recreational Use of
Land and Water Act (RUA) to outdoor recreation on largely unimproved land is
evident not only from the Act's stated purpose but also from the nature of the
activities it listed as recreational purposes within the meaning of the statute;
specifically, with the exception of swimming, which may be either an indoor or
outdoor sport, the recreational activities enumerated in the statute are all pursued
outdoors
-Consistent with the obvious purpose and intent of the Recreational Use of Land and
Water Act (RUA), where land devoted to recreational purposes has been improved in
such a manner as to require regular maintenance in order for it to be used and enjoyed
safely the owner has a duty to maintain the improvements.
-The need to limit owner liability under the Recreational Use of Land and Water Act
(RUA) derives from the impracticality of keeping large tracts of largely undeveloped
land safe for public use.
Mills v. Com. 534 Pa. 519 (1993)
-Nonprofit municipal corporation was not entitled to immunity from personal injury
actions under Recreation Use of Land and Water Act (RUA), where land which
corporation had leased was highly developed recreational area, vastly altered from its
natural state, containing attractions for which entry fees were required.
- Landowner must bear responsibility of maintaining improvements placed upon land
to which general public is permitted access.
-Ordinary users of developed recreation area could reasonably expect area to be
maintained in manner safe for their normal recreational pursuits.
Rhode Island
Smiler v. Napolitano, 911 A.2d 1035 (2006).
-After discovering a recreational user in a position of peril, landowners must guard or
warn against a dangerous condition, use, structure, or activity.
-To encourage landowners to open their property to the public for recreational use,
Rhode Island's Recreational Use Statute limits landowners' liability for personal
injuries sustained by the users of such properties.
-Recreational Use Statute applies to state and municipal property; amendment to
statute clearly defined owner to include the person in control of the premises
including the state and municipalities.
-The Recreational Use Statute modifies the common law to change the legal duty that
owners owe to users of recreational property; this change from the common law treats
users of public and private recreational properties as trespassers, thus reducing the
duty of care owed to recreational users.
Hanley v. State, 837 A.2d 707 (2003)
-Recreational use statute afforded immunity to state-owned public park, regardless of
when the property was made available to the public for recreational use. Gen.Laws
1956, 32-6-1 et seq.)
-State was immune under recreational use statute from liability for injuries suffered
by camper in fall that occurred while she was walking on roadway in a State park that

20

was open for public use; camper did not allege willful or malicious conduct by the
state.
-Existence of statutory immunity under recreational use statute does not depend upon
the specific activity pursued by the plaintiff at the time of the plaintiff's injury, but
rather, the inquiry should focus on the nature and scope of activity for which the
premises are held open to the public; the goal is to determine the character of the
premises, and if the premises qualify as being open to the public for recreational
activity, the statute does not require a distinction to be made between plaintiffs
depending upon the activity in which each was engaged at the time of the injury
Lacey v. Reitsma, 899 A.2d 455 (2006).
-Recreational use statute afforded immunity to state park where minor was injured
while riding his bicycle, and willful or malicious exception to statutory immunity was
not applicable because minor pointed to no evidence that the State discovered minor
in a position of peril and then failed to warn him against the potentially dangerous
condition.
South Carolina
Brooks v. Northwood Little League, Inc. (S.C.App. 1997) 327 S.C. 400, 489 S.E.2d
647
-Recreational use statute barred spectator's claims against little league, school, and
school district for injuries sustained in trip and fall on grounds of school while
attending T-ball game; T-ball qualified as summer sport for purposes of
recreational use statute and spectator's permission to attend game was clearly implied
by lack of admission fee.
Corbett v. City of Myrtle Beach, S.C. (S.C.App. 1999) 336 S.C. 601, 521 S.E.2d 276.
-Contractor whose franchise agreement with city required contractor to furnish
lifeguards for city-owned beach front was not occupant or person in control of the
premises, and thus, contractor was not owner and was not entitled to protection
under Recreational Use Statute in wrongful death action arising from drowning;
franchise agreement reserved to city considerable control over contractor's operations,
going so far as to schedule lunch breaks for lifeguards and provide specifications for
guard towers, and contractor lacked power to either provide or prevent public access
to beach.
Cole v. South Carolina Electric and Gas, Inc. (S.C.App. 2003) 355 S.C. 183, 584
S.E.2d 405
-Landowners owe no duty of care to keep the premises safe for recreational users and
need not give any warning of a dangerous condition, use, structure or activity on the
property.
- Parking fee paid by driver of vehicle in which swimmer was passenger was not
charge for swimmer's right to use swimming area of lake, within meaning of
exception to immunity from liability under Recreational Use statute for injury to
invitees or licensees that were charged by landowner for recreational use thereof,
where not everyone in vehicle had to pay for admission to swimming area, and
persons who walked or rode bicycles to swimming area were not charged admission.
21

Chrisley v. U.S. (D.C.S.C. 1985) 620 F.Supp. 285

-Landowner's failure to post sign warning fishermen that they may fall from rocks
along shoreline into river below does not constitute grossly negligent, willful, or
malicious conduct.
South Dakota
Johnson v. Rapid City Softball Ass'n, 1994, 514 N.W.2d 693
-Softball was not activity contemplated by recreational use statute and, thus, statute
did not provide softball association and city that leased softball complex to
association immunity from liability to injured softball player for alleged negligence.
-Under recreational use statutes, land occupier is granted immunity when entrant
comes upon occupier's land for recreational purposes without conferring any
economic benefit or consideration upon occupier.
Musch v. H-D Elec. Co-op., Inc., 1990, 460 N.W.2d 149, 8 A.L.R.5th 921.
-Definition of owner in statute describing power to exclude persons from land did
not apply to electrical utility which held right-of-way easement but only occupied
land for limited purpose not including power to exclude persons from land so that
utility was not entitled to take owner's defense of owing no duty of care to licensee.
Kern v. City of Sioux Falls, 560 N.W.2d 236, 1997 SD 19.
-Roller-skating on bike trail in city park was use of land for recreational purposes
within meaning of Recreational Use Statutes, and thus, city was immune from
liability in action brought by skaters who fell on uneven section of trail.
-Term recreational purposes, as used to determine scope of Recreational Use
Statutes, is not limited to activities performed or enjoyed only on undeveloped land.
Tennessee
Shaver v. Tennessee Valley Authority, 1982, 565 F.Supp. 12.
-Recreational user of property owned by Tennessee Valley Authority could not
recover from the Authority for injuries sustained when boulders fell on him during a
rockslide while he was fishing, because Tennessee landowner liability statute
provided that a landowner owed no duty of care to keep land safe for entry or use by
others for fishing, recreational user could not assert the status of invitee to confer duty
upon the Authority, and there was no evidence that Authority's conduct was willful or
malicious.
Sumner v. U.S., 1992, 794 F.Supp. 1358
-Where personal injury occurred in rear area of United States military base which was
open to public recreation use, applicable standard of care was that found in state's
recreational use statute.
Cagle v. U.S., 1991, 937 F.2d 1073.

22

-Under Tennessee's recreational use statute, absent willful or malicious conduct,

landowner otherwise shielded by statute does not waive immunity simply by
inspecting his property.
-Section of Tennessee's recreational use statute providing that statute does not limit
liability for injury caused by persons granted permission to recreate was drafted to
prevent statute from being used as shield by third-party tort-feasor who, while on
landowner's property with landowner's permission, injures someone else on
landowner's property.
-Provision in Tennessee's recreational use statute stating that statute does not limit
liability for injury caused by acts of persons who have been granted permission to
recreate did not deprive Government of immunity for injuries caused to child in
national park by other children who were playing on cannon while injured child was
under it; statute would not be read to subject landowners to tort liability if they
did not monitor conduct of recreational users of their land and actively supervise
actions of such users.
Parent v. State, 1999, 991 S.W.2d 240.
-State could raise recreational use statute as a defense to cause of action brought
by seven-year-old bicyclist and his family, alleging that state's negligence in creating
or maintaining state park bike trail caused bicyclist's injuries.
Bishop v. Beckner, 2002, 109 S.W.3d 725
-Landowner's failure to place a no trespassing sign on boundary of her property, or
to place warning sign outside cave located on her property, did not amount to grossly
negligent behavior such as would trigger exception to immunity defense set forth in
Recreational Use Statutes, and thus landowner was immune from liability in action
arising from death of child who fell from ledge in cave.
Texas
Dubois v. Harris County 866 S.W.2d787
-Term premises as used in recreational use statute includes components of the
recreational area which are of the same kind or class as those listed in the statute, and
a structure used within a recreational area to provide parking for persons visiting the
area is within the meaning of the term premises.
- Recreational use statute applied to claim of user of park against county which
owned the park for injuries sustained when she tripped in a hole, where there was no
fee charged for her use of the park and the area where the injury occurred was a park
which she frequented in order to take walks along a nature trail.
-Recreational use statute mandates only that county not cause injury to users of park
through wantonness, wilfulness, or gross negligence.
Stephen F. Austin State University v. Flynn (Sup. 2007) 228 S.W.3d 653.
-State university had protection, under recreational use statute, from tort liability to
bicyclist who was injured while riding bike on community trail which crossed
university's campus, i.e., force of water from oscillating sprinkler, which was part of
university's in-ground irrigation system, allegedly knocked bicyclist off her bike,

23

though university had granted city an easement for use of trail for cycling; despite
grant of easement, university retained ownership of underlying fee, so that university,
as owner of the property, retained its status as member of class protected by
recreational use statute.
-Recreational use statute, which provides that owner of real property is entitled to the
statute's protection when it gives permission to another to enter for recreation, does
not require that owner contemporaneously acknowledge each use; rather, permission
may be implied from owner's knowledge of, and acquiescence in, public's use of its
land for recreational purposes.
Kopplin v. City of Garland (App. 5 Dist. 1993) 869 S.W.2d 433,
-Playing on playground equipment on city playground is recreational activity
contemplated under recreational use statute.
-Statutory definitions of recreation for recreational use statute are not exclusive and
do not exhaust the class.
City of Bellmead v. Torres 89 S.W.3d 611 Tex.,2002
-Fact that park patron came to city park with intent to participate in softball game was
not determinative of whether Recreational Use Statute applied, where patron was
injured on swing, not while playing softball; question was whether sitting on a swing,
not playing softball, was recreational activity within meaning of Statute.
Flye v. City of Waco (App. 10 Dist. 2001) 50 S.W.3d 645.
-Provision of Recreational Use Statute stating that liability is not limited for property
owner who has been grossly negligent or has acted with malicious intent or in bad
faith did not create liability where none would exist in its absence, and thus, provision
merely confirmed that liability-limiting provisions of statute did not limit liability that
otherwise existed for contemporaneous acts of gross negligence or acts committed
with malicious intent or bad faith.
State of Texas Parks & Wildlife Dept. v. Morris (App. 13 Dist. 2004) 129 S.W.3d 804.
-Allegations by family of three-year-old child who suffered burns from falling into
campfire pit in State park which contained smoldering coals from a previous fire, that
failure to have waist-high fire grills or rings around campfire pit involved extreme
degree of risk, and that Parks and Wildlife Department had actual, subjective
awareness of the risk involved but nevertheless proceeded in conscious indifference
to rights, safety, or welfare of others, stated a claim of gross negligence, under
recreational use statute.
State v. Shumake (Sup. 2006) 199 S.W.3d 279,
-Gross negligence, for purposes of recreational use statute, requires that the
landowner be subjectively aware of, and consciously indifferent to, an extreme risk of
harm.
-Under recreational use statute, landowner may assume that the recreational user
needs no warning to appreciate the dangers of natural conditions, such as a sheer cliff,
a rushing river, or even a concealed rattlesnake; however, a landowner can be liable

24

for gross negligence in creating a condition that a recreational user would not
reasonably expect to encounter on the property in the course of the permitted use.
Utah
De Baritault v. Salt Lake City Corp., 1996, 913 P.2d 743.
-Utah Limitation of Landowner Liability-Public Recreation Act did not apply to
small, improved city park, and thus, did not preclude minor's recovery for injuries he
sustained when he fell from toddler swing and injured his head on cement ridge
surrounding play area; extending Act's application to improved city parks which,
unlike many private wilderness lands, were not opened to public in response to Act,
and which were already covered by other laws (i.e., Governmental Immunity Act),
would serve neither legislature's intent nor purpose of statute.
Jerz v. Salt Lake County, 1991, 822 P.2d 770
-Statute limiting liability of land used for recreational purpose could not be
interpreted to afford immunity to public entity against user of public road system
traveling in on-highway vehicle to recreational area.
Golding v. Ashley Cent. Irr. Co., 1995, 902 P.2d 142.
-A landowner may be liable under the attractive nuisance doctrine for an injury
caused by an uncommon, artificially produced, and inherently dangerous condition
that attracts children when there is likelihood that a child would not appreciate the
danger.
- Landowner's failure to warn or guard against dangerous conditions on the land does
not constitute willful or wanton conduct for purposes of liability to trespassers under
common law or the Limitation of Landowner Liability Act when the conditions are
common, obvious, or inherent in the nature of the land or in the use to which the land
is put.
-Owner of canal in which 17-year-old boy drowned, who neither invited public to
swim there nor posted signs prohibiting it, could not be liable based on theory of
simple negligence under attractive nuisance doctrine, though boy may have qualified
as a child for purposes of doctrine's applicability, as the Limitation of Landowner
Liability Act under which boy's father brought action limited owner's liability to
breach of a duty to refrain from willful or malicious failure to warn or guard against
dangers, regardless of age, maturity, or experience of persons using the land for
recreation.
Figueroa v. U.S., 1999, 64 F.Supp.2d 1125
-To qualify for immunity under Utah Limitation of Landowner Liability-Public
Recreation Act, land in question must be: (1) rural, (2) undeveloped, (3) appropriate
for type of activities listed in the Act, (4) open to public without charge, and (5) type
of land that would have been open in response to Act.
Vermont
Garafano v. Neshobe Beach Club, Inc. 126 Vt. 566

25

- Where use of corporation's recreational area by individual and his guests, which
included plaintiff who was injured in softball game, was to its interest and advantage
and was in furtherance of its purposes and functions, the status of persons such as
plaintiff would be that of a business visitor.
Virginia
City of Virginia Beach v. Flippen, 1996, 467 S.E.2d 471, 251 Va. 358
-City was included in definition of landowner, in statute that provided landowner
owed no duty of care to keep land or premises safe for entry or use by others for
recreational use, for the city's maintenance of stairways that were located on private
land and that provided public access to beach; city's actions in providing and
maintaining public access over private land for recreational purposes was consistent
with purposes of statute.
Washington
Jones v. United States 693 F.2d 1299 (applying Wash. Law)
-Liability of United States for snow-sliding accident which occurred in Olympic
National Park was controlled by Washington Recreational Use Act, since
Government was recreational landowner under Act, area where accident occurred was
part of forest lands, and dollar charged injured plaintiff to rent innertube was not a
fee charged for her use of recreational facilities.
-While it was negligent on Government's part not to put up signs or ropes to guard
against dangerous slope on which plaintiff was severely injured in snow-sliding
accident in Olympic National Park, Government's failure to do so did not rise to
status of willful and wanton conduct as required for liability under Washington
Recreational Land Use Act.
Matthews v. Elk Pioneer Days 64 Wash.App. 433
-Outdoor recreation as used in recreational use statute, which protected landowners
and occupiers of land who opened their land to the public for outdoor recreation from
liability, did not include the activity of attending a weekend celebration or watching
entertainment on outdoor stage during a community festival.
West Virginia
Kesner v. Trenton 216 S.E.2d 880
-Statute limiting liability of landowners who invite or permit without charge
recreational use of property by others does not limit common-law liability of
landowner, or of lessee in control of premises, to those who enter premises as
business invitees and suffer injury thereon.
-Where marina operators could have reasonably expected to attract prospective
customers and to increase marina sales and rentals by allowing people to swim in lake
at no charge, such expectation was sufficient charge, within meaning of statute
limiting liability of landowners who invite or permit without charge recreational use
of property by others, to negate limitations of such statute and left operators with
common-law duty of providing ordinary care to business invitees such as 15 and 16year-old girls who drowned in lake while their father was waiting to rent boat

26

Wisconsin
Copeland v. Larson 174 N.W.2d 745
Moua by Schilling v. NSP 458 N.W.2d 836
-Recreational use statute immunized electric utility from liability for injuries and
drowning deaths which occurred when excess water discharged from dam flowed
over river bank area where utility permitted public fishing, even though alleged
negligence of utility occurred on part of its property devoted to business use, that
hazard causing the injuries and deaths was brought about by nonrecreational activities
within utility's control, and not by hazards which were natural or related to recreation
use.
-With regard to exception to immunity conferred by recreational use statute if owner
collects money, goods or services in payment for use of property for recreational
purposes and if aggregate annual amount exceeds $500, such pecuniary benefit must
come from use of the property for recreational activities, not from owner's business
activities unrelated to recreation.
-Exception to immunity afforded by recreational use statute if injury is caused by
malicious failure of landowner to warn against an unsafe condition on the property of
which the owner knew or if the injury is caused by malicious act does not apply to
wanton, wilful and reckless conduct, which the law formerly characterized as gross
negligence; acts are malicious within meaning of the statute when they are the
result of hatred, ill will, a desire for revenge or inflicted under the circumstances
where insult or injury is intended.
Urban v. Grasser 243 Wis.2d 673 (2001)
-Factors considered by court in determining whether recreational immunity statute
applies to protect property owner include the intrinsic nature of the activity, the
purpose of the activity, the consequences of the activity, the intent of the user, the
nature of the property, and the intent, or lack thereof, of the property owner; none of
factors, viewed in isolation, are determinative, and in any give case, one or more of
factors may have greater weight, but all should be looked at in their totality.
Wyoming
Holland v. Weyher/Livsey Constructors, Inc., 1987, 651 F.Supp. 409
-Wyoming landowner immunity statutes, which provide that landowner owes no duty
of care to keep premises safe for entry or use of others for recreational purposes, did
not bar action arising from minor's injury in industrial site, although minor entered
site to play.
Madsen v. Wyoming River Trips, Inc., 1999, 31 F.Supp.2d 1321
-Intent behind the Wyoming Recreational Safety Act was not to preclude parties from
suing for a provider's negligence, it was merely to stop people from suing providers
for those risks that were inherent to a sport; thus, cause of action still exists for
negligence of the provider under the Act.
-Under Wyoming law, as predicted by the district court, in determining whether a
particular risk is an inherent risk within meaning of the Wyoming Recreational

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Safety Act, the court must look to the specific facts of a case and to the abstract
character of the risk.

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