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Landowners grapple with liability questions: a third generation of state statutes might finally convince forest owners to open more land to American recreationists.

The fondest memories of our youth usually conjure up carefree outdoor adventures. Mine are of a stream that led to Marley Creek near Baltimore-gathering fossils on a secluded Calvert Cliffs beach, bushwhacking down an old fire trail, and learning to ride a motorcycle in an old quarry. There was camping with my scout troop at Broad Creek, building forts in a small grove of trees near home, and later on, moonlight walks in nearby fields with my girlfriend.

It didn't occur to me then, but now those pleasures were possible only because of the tolerance or graciousness of a benevolent landowner. Very few of my outdoor pursuits occurred in public parks or other places set aside by the government for recreation.

We want our children to enjoy some of the same activities we so fondly recall. But today most private lands are posted with NO TRESPASSING signs and are no longer available to adventuresome youth.

Not all loss of access to private land has resulted from the incessant onslaught of tract homes across the landscape. We have traditionally been a litigious society, and the fear of lawsuits has gone a long way in convincing landowners to post their property.

The states have recognized this problem as well as their own inability to provide lands for recreational use. Therefore, most states have passed so-called "hold-harmless" laws in order to provide some protection to landowners from suits arising out of injuries received by recreational users of their land. Much like a contract, hold-harmless agreements arrange for one party to assume the liability inherent to a situation, relieving the other party of that risk.

The laws have been passed in two major pushes. The first of these occurred in the mid-60s and was based upon a model act written by the Council of State Governments. Thirty states responded and enacted hold-harmless laws.

The second generation of laws ocurrred in the 70s, when an additional 18 states passed bills in response to efforts by various sporting groups. Since that time, our nation has had an absolute explosion of civil suits-many arising from recreational use of private lands. There has also been a perceived rise in the amount of damages awarded.

At the American Motorcyclist Association (ANM), barely a day goes by when we don't hear from landowners who want to let people use their land but are afraid of liability.

Liability is also a concern of the American Forestry Association, because many of its members are forest landowners. Two years ago, liability was one reason AFA's Trail Riders of the Wilderness program now renamed American Forest Adventures; see page 50) was disbanded for a year.

Every day at AMA we get calls from recreationists. Areas they once were able to use are now closed off or posted, and they don't know where else to go. In many cases, we find that knowledge of the state's hold-harmless laws can go a long way in solving the problem.

For some reason, the existing hold-harmless statutes have never been publicized and are used mainly as courtroom maneuvering tools rather than for their original purpose of convincing property owners to make land available for recreation. Most landowners don't know about them. From our contacts and research, it would appear that their lawyers and insurance agents don't know about the laws either. Their advice to landowners most often is to post land to keep people away

The AMA therefore commissioned a study on the hold-harmless laws by noted recreation law expert Betty van der Smissen. The study, published last june, contains a compilation of all current landowner holdharmless laws.

It also contains commentary on the basic clauses of most of the laws as well as several helpful charts noting each state's coverages.

We are well aware that AMA members are not the only recreational users facing the problem. As a charter member of the American Recreation Coalition (ARC), a network of recreation-oriented groups, we've found that horse owners, anglers, hikers, campers-in short, almost every recreational group-are running into shrinking land access. The dark cloud of lawsuit anxiety hovers over all.

A report to the President's Domestic Policy Council by the Task Force on Outdoor Recreation Resources and Opportunities in March 1988 underscored the problems that fear of lawsuit imposes upon landowners who might otherwise provide access to land.

As a result of this report, and at the urging of the ARC, a loose coalition of associations of owners and users of land has been formed. This coalition, the Landowner and Recreationist Alliance (LRA), met formally for the first time last June 14 at the Washington Press Club in our nation's capital.

The meeting emphasized the severity of the problem. Bob Brantley, the immediate past president of the International Association of Fish and Wildlife Agencies, related that Florida lost percent of private lands open to the general public last year alone.

Roy Muth of the International Snowmobile Industry Association stressed that the continued integrity of its private-land-dependent 200,000-mile trail system was in doubt. Dennis Stolte of the American Farm Bureau Federation added that, "Neither love nor money can get insurance policies anywhere to protect the small landowner from injuries to recreational users."

Though AFA is not a member of the newly formed coalition, Executive Vice President Neil Sampson said that the Association is following the work of the coalition with great interest, since its topic is of primary concern to forest landowners.

The alliance determined that the solution to this problem must take two directions. First, knowledge of the existing hold-harmless laws must be more broadly disseminated. Second, the current laws must be strengthened to provide greater protections.

The American Motorcyclist Association is at the forefront of both prongs of this attack. We have published our study of the existing hold-harmless laws and made it available to the public.

We are also working to strengthen the existing laws. Our review of these existing laws has pointed out many of their deficiencies. I was given the task of translating the solutions into a third generation of hold-harmless legislation.

Model legislation has been developed for several purposes. One is to provide greater uniformity among the states for economic, social, or political reasons. Other considerations are avoiding conflicts when the laws of several states are involved in a single case and providing reciprocal rights and remedies between the citizens of different states.

Most model legislation is drafted in response to emerging social needs by an individual or group with an interest in the matter. The model is then presented to one or more organizations that develop model laws.

These organizations, such as the National Conference of Commissioners on Uniform State Laws and the American Legislative Exchange Council, further research the proposed model and refine it in such areas as need, content, and constitutionality. With their approval, the model is then presented to state legislators for action. The individual states are, of course, free to approve or disapprove use of the act.

Many of the more modern types of recreational activities are not included in existing statutes. As new modes of recreation become popular, coverage either remains non-existent or has to wait for the vagaries of the legislative process.

For example, the New York statute includes such activities as canoeing, hanggliding, and snowmobiling. The law did not include icesailboating, and a suit against a lakeside landowner was allowed to proceed. The first proposed change in the law would therefore broaden the definition of recreational use. Instead of the current lists of permitted uses, the new model law would broadly include any conceivable recreational activity.

Government entities are not provided coverage under many existing statutes. We have come a long way since the end of government immunity to lawsuits. However, we believe that in the interest of fairness, and to encourage governments to explore appropriate recreational activities, governments should be treated under the statutes in the same manner as the individual. Therefore, the proposed act would extend protection to state, local, and federal governments.

Opening land to the recreational user is not always without expense to the landowner. Often provision must prudently be made for parking, erosion control, fencing, and trail maintenance. Unfortunately, most current laws provide protection only when nothing is given to the landowner for use of the land.

Some of the states extend protection to landowners when land is leased to the government for recreational purposes, and one or two states provide for some tax relief in exchange for public hunting and fishing access.

The LRA does not believe that this goes far enough. The new model act would extend recreational lease coverage to nonprofit organizations and allow tax abatement as an incentive.

The New Hampshire "Current Use" statute is a good example of a tax-incentive program. Lands open for gratuitous recreational uses are assessed at lower values than similar lands held for speculation.

In addition, the new act would allow provision for fees to be dedicated to improving access, preventing or correcting damage caused by recreational uses, and warning about or removing user hazards in the land. Still excluded from the model act are commercial or other operations intended to generate a profit.

Many of the state laws include some provision requiring the expressed permission of the landowner, sometimes in writing, before coverage is granted. This may have the effect of requiring the landowner to act as a permanent gatekeeper, thereby discouraging recreational uses.

Permission need not always be so formal. The old model act did not require such stringent wordings, and the new act will maintain the old provision regarding landowner permission.

Landowners covered under the old act are not required to erect warning signs or to otherwise protect users from injury. However, if they do, the courts may impose liability upon the landowner.

This is an old common-law anomaly and has resulted in the enactment in many states of "Good Samaritan" laws, which encourage medical personnel to help any injured person they may encounter.

Similarly, we believe that warning of danger or trying to otherwise protect users from injury should be encouraged. Idaho has successfuUy made a recent amendment to its law allowing the use of warning signs or other safety measures without fear of liability. The Idaho provision will be included in the new model act.

The current laws have been successful in protecting some landowners. Published case citations involving private landowners are rare because many never get to the point of trial.

Among the more successful recorded users of the statutes is the Tennessee Valley Authority, With holdings in several states, TVA has achieved a very good track record of successful defenses using the current statutes in actions ranging from injuries received in a fall while fishing to an automobile collision.

However, even successful defense can impose great costs. In many states, the courts are reluctant to award costs to defendants, and in others the court may not award costs unless provided by statute. The new model act includes a provision to award costs to successful defendants when suit has been brought for frivolous purposes.

Access to land for recreational purposes continues to be a growing need. Many opportunities are continuously lost due to the expansion of our cities and the prohibition of uses on some government lands. Private lands are necessary to fill the gaps.

It is hoped that greater dissemination of information on current hold-harmless laws as wen as the passage by the states of statutes based on the new model act win provide landowners some added incentive to open their land to users.

The American Legislative Exchange Council has included the Landowner Recreationist Alliance act in its approved list of model acts for consideration by the states. I hope it helps to make for more fond memories of recreational adventure.
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Author:Lundquist, Eric J.
Publication:American Forests
Date:Jan 1, 1989
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