Recreational Use Statutes

[rohr]

The issue of recreational use statutes has popped up again, this time in the Muir Valley thread. In order to avoid further derailing that thread with this ridiculously long post, I thought I’d start a new thread.

When we start to talk about fundraising for PMRP and Muir, people often ask why the Coalition or the Webers don’t charge a fee to cover their expenses. The short answer is that, if a landowner allows access to his land for recreational purposes free of charge, he is granted a great deal of protection by the Kentucky recreational use statute. If a fee is charged, that protection is lost and the landowner takes on a huge potential liability for any injuries that may occur on his property.

Now for the long answer...

About Recreational Use Statutes

All 50 states have passed some sort of recreational use statute. The purpose of these statutes, as stated in Kentucky’s version “is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes."

Landowner liability law is messy and can vary a lot from state to state, but the basic idea is pretty simple. The starting point is that, if you allow people on your property, you have a duty to make that property safe, or at least to people them of dangers on your property. The nuances of that duty can get rather complicated, and, fortunately, are unimportant here.

The whole point of recreational use statutes is to substantially lessen the duty that the landowner owes to recreational users of his land, provided that the landowners do not charge for recreational access. Under the statute in Kentucky, if a landowner allows people to use his land for recreation without charging a fee, the landowner has “no duty of care to keep the premises safe . . . or to give any warning of a dangerous condition, use, structure . . . .” The Kentucky statute doesn’t completely relieve the landowner of liability, but it comes close—in order to be held liable, the landowner must act willfully or maliciously.

The Kentucky statute, like those of almost every other state, applies only if the landowner allows recreational use without charging a fee. As soon as a landowner charges a fee, the statute’s protection goes away, and we’re back to the starting point where the landowner has a legal duty to keep the land safe. What exactly that duty would entail is subject to speculation, but, as you could imagine, taking on such a duty in a large outdoor space such as Muir or the PMRP would be one hell of a job.

So, that’s why Muir, PMRP, and other places can’t charge a small fee. If they did charge a fee, it would have to be large enough to cover the costs of additional maintenance of the land and liability insurance. By way of example, when I visited the Gunks this past spring, daily admission was $17 per person per day.

What About Charging for Parking?

This question has been posed on the forum several times. Can landowners keep the climbing free, but charge for parking? The answer, of course, is maybe. The Kentucky statute says that the its protections don’t apply if the landowner charges recreational use, and further defines charge as “the admission price or fee asked in return for invitation or permission to enter or go upon the land” This doesn’t say anything about charging people to park.

The Kentucky Court of Appeals dealt with this question in a 1998 case and found in that case that charging for parking did not strip the landowner of the statute’s protections.

The court looked at whether the parking fee was indeed a payment to park there or a quid pro quo for accessing the land. Two main factors persuaded the court that the parking fee was not a charge to access the land: (1) the fact that the fee was charged per vehicle and not per person and (2) no fee was charged for those accessing the land on foot, by bike or by parking in a more distant lot where no fee was charged.

So it looks like a landowner can charge a parking fee without losing the protection of the Kentucky recreation statute. However, one fact to keep in mind is that, in the case above there were alternative ways to access the land without paying the parking fee. Lands like Muir and PMRP are remote enough that driving is the only practical way to climb there.

What About Places That Do Charge?

Horsepens 40 sometimes comes up in these discussions. The owners of HP40 charge climbers to access the land. According to their website, the cost currently is $8.

This may well be enough, along with revenue from camping, the store, et cetera to cover the cost of liability insurance. I don’t know.

Also, Alabama’s recreational use statute is substantially different from Kentucky’s. All 50 states have adopted a recreational use statute, but each one is a little different in its exact wording, and there may be further differences in the ways courts interpret the statutes.

Kentucky’s statute makes it clear that if a landowner charges, the landowner loses any protection under the statute. Alabama’s statute is not so clear. The statute doesn’t talk about charging a fee, but rather talks about running a “commercial enterprise for profit.” Per the Supreme Court of Alabama, charging a fee doesn’t necessarily mean you’re running a for-profit enterprise. The question is one of intent of the property owner. Charging a fee to defray some of the costs of use of the land is not the same as charging a fee with hopes of making a profit off the use of the land.

Who knows whether HP40’s climbing area would be considered a commercial enterprise for profit? Perhaps the camping, store and such are commercial and the climbing is not. The only way we could know that for certain is for someone to get hurt and try to sue HP40 and have a court rule on it. (According to an Access Fund document, they are not protected by the state’s recreational use statute and instead rely on liability insurance. I’m not sure the Access Fund is right on this, but I don’t have enough information to say so with much confidence.)

Also, it seems like the risks for landowner liability are lower at HP40 than at Muir. For example, it would be hard to argue that a landowner is at fault if you take a bad fall while bouldering. On the other hand, if a climber were injured due to a bolt failure, the chances that the landowner could be held liable for that are much higher.

It seems pretty clear to me that, if Kentucky had Alabama’s law, landowners could charge a small fee to access Muir or PMRP without losing the statute’s protections. Maybe we should start writing letters to Kentucky legislators trying to get them to change the law to allow collection of fees. The Alabama approach seems to make a lot of sense to me for a place like Muir Valley.

Did anybody actually read this entire post?

References

Kentucky Recreational Use Statute – KRS § 411.190
Alabama’s Recreational Use Statute – Al St § 31-15-1 to § 35-15-28
Wisconsin’s Recreational Use Statute – W.S.A. 895.52 and 895.525
The Kentucky case discussed in the parking section: City of Louisville vs. Silcox, 977 S.W.2d 254 (Ky.Ct.App 1998).
Alabama cases on charging fees: Martin v. City of Gadsden, 584 So. 2d 796 (Ala. 1991) and Owens v. Grant, 569 So. 2d 707 (Ala. 1990).
The Access Fund document that refers to HP40: http://www.accessfund.org/atf/cf/%7B1F5 ... kstrat.pdf

Further Reading:

Access Fund article on landowner liability and recreational use statutes that talks about the Red (starts on p. 9):
http://www.accessfund.org/atf/cf/%7B1F5 ... er_vLR.pdf

[Disclaimer: This is not legal advice. This is just the product of being kind of bored because I’m not out climbing. I don’t have access to Lexis or Westlaw these days, so I have to rely on the free stuff, so I could have missed ridiculously important cases. Do not rely on anything in here without consulting a lawyer.]

[CLIMBTRAD]

thanks Mark for your research. I wish threir was more we could do to change the laws

[One-Fall]

[quote="rohr"]
What About Charging for Parking?

This question has been posed on the forum several times. Can landowners keep the climbing free, but charge for parking? The answer, of course, is maybe. The Kentucky statute says that the its protections don’t apply if the landowner charges recreational use, and further defines charge as “the admission price or fee asked in return for invitation or permission to enter or go upon the land” This doesn’t say anything about charging people to park.

The Kentucky Court of Appeals dealt with this question in a 1998 case and found in that case that charging for parking did not strip the landowner of the statute’s protections.

The court looked at whether the parking fee was indeed a payment to park there or a quid pro quo for accessing the land. Two main factors persuaded the court that the parking fee was not a charge to access the land: (1) the fact that the fee was charged per vehicle and not per person and (2) no fee was charged for those accessing the land on foot, by bike or by parking in a more distant lot where no fee was charged.

So it looks like a landowner can charge a parking fee without losing the protection of the Kentucky recreation statute. However, one fact to keep in mind is that, in the case above there were alternative ways to access the land without paying the parking fee. Lands like Muir and PMRP are remote enough that driving is the only practical way to climb there. [quote="rohr"]



Thanks, Mark. Who/how can we get clarification on this specific to Muir?

[climb2core]

Sounds like we need a free parking lot for Muir about a mile away

[Cleveland]

I would be willing to write a letter. Do you think a petition would be more useful in this case or if a bunch of individuals sent in their own letters?

[toad857]

Maybe we should start writing letters to Kentucky legislators trying to get them to change the law to allow collection of fees.

Seems like the most reasonable, easiest way around it. With Muir's waiver system in place, it could make our case more convincing.

[toad857]

Further Reading:

Access Fund article on landowner liability and recreational use statutes that talks about the Red (starts on p. 9):
http://www.accessfund.org/atf/cf/%7B1F5 ... er_vLR.pdf

That is a good read. Here's a scary excerpt:

"Until recently, Illinois’s recreational use statute defined recreation as “any activity undertaken for conservation, Recreational resource management, exercise, education, relaxation, or pleasure on land owned by another.” Now, the state legislature has changed the law to define recreation, for the purpose of the statute, as the “entry onto the land of another to conduct hunting or recreational shooting or a combination thereof or any activity solely related to the aforesaid hunting or recreational shooting.” In this new change to the law, hunting and recreational shootings are not examples; they now sum up the entire legal definition of recreation in the state of Illinois. This has caused a big loss for local climbers."

WOW. And that happened in Illinois!!!

On the bright side, though, it seems that a properly motivated group can indeed get laws changed in their favor.

[Saxman]

So why cant the webers sell the parking lot to the Friends of Muir Valley and let them charge for parking? Complete legal separation. The FOMV can then do whatever they want with the money including give it to the Webers.

[RRO]

contact Elaine Wilson with Adventure Tourism. Ky as a state is actually offering some pretty nice protections to private areas that are willing to open up their land for public use. I would but since Im banned from the Valley I probably wont. But I do feel its a great resource that needs protected and its worth a call from someone heading this charge.

[clif]

that's gawd'am near perfect