Relates to landowner liability for injury during recreational use of property

Section 2 provides that the bill would take effect immediately.

Existing law

GOL §9-103 provides that owners, lessees and occupants of premises owe no duty of care to keep their premises safe for entry for persons engaging in specific recreational activities, including hunting, fishing, organized gleaning, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for noncommercial purposes or the training of dogs.

Justification

Since 85 percent of New York State is privately-owned, many people rely on private landowners for access to the State's varied outdoor recreational opportunities. Landowners would be more receptive to opening their lands for public recreational use if they believed that they would not be subject to liability for doing so. Recreational activities can pose a risk to the participant either because of the very nature of the activity or because of the character of the natural surroundings in which the activity takes place. Accordingly, individuals have been injured due to their failure to recognize the inherent risks associated with such activities. Certain activities have been foreclosed to the public because of the fear of liability or the cost of insurance to be borne by the landowner in order to mitigate such liability. In order to promote the availability of recreational opportunities, the liability of landowners is limited in GOL §9-103.

GOL §9-103, commonly referred to as the Recreational Use Statute, affords landowners immunity from liability based on a failure to keep premises safe for entry and use by others for specific recreational activities, including: hunting, fishing, organized gleaning, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, motorized vehicle operation for recreational purposes, snowmobile operation, cutting or gathering of wood for noncommercial purposes or the training of dogs. This statute is a complete affirmative defense to claims of ordinary negligence brought against a landowner by someone engaged in one of the listed activities. However, one of the concerns for landowners is that this list does not encompass all possible recreational activities for which a landowner may make their land available to the public, and therefore raises the question of whether the landowner is immune from liability for injury upon a person engaging in a recreational activity not expressly identified in the statute. For example, because hiking is a covered activity but walking is not, in order to determine the applicability of the statute, the courts have attempted to distinguish between two activities that are essentially the same. This bill would address this incongruity by including all recreational activities in GOL §9-103.

In addition, this bill would clarify that property owners would be protected if they allow individuals to pass over their land in order to participate in a recreational activity. For instance, as the statute currently states, a court may find it does not have sufficient statutory guidance to determine whether traversing property in order to engage in hunting or fishing activities, which clearly fall under the protections afforded by GOL §9-103, is afforded the same protection by the statute. This bill, by specifically providing protection to landowners who allow persons to traverse their property, would allow hunters and anglers access to public or private lands where angling and/or hunting is allowed, and would increase angling and hunting opportunities on parcels of land that are currently landlocked by surrounding properties where hunting and angling may not be available to the public.

Finally, this bill would clarify that organizations that maintain or develop trails and other recreational facilities are covered as occupants of the land, even though they may not have an ownership interest or exclusive license to operate the land or have any authority to exclude use of the land by others. These groups, however, have permission of the landowner to maintain the trails or other recreational facility. Courts have held that if an entity had an authorized presence on the property, it is deemed an occupant of the property within the meaning of the Recreational Use Statute. See: ALBRIGHT V. METZ , 88 N.Y.2d 656 (1996) and WELLER V. COLLEGES OF SENECAS , 261 A.D.2d 852 (4th Dept. 1999). This bill is intended to prevent claims of negligent maintenance made against recreational groups who develop and maintain recreational trails for use by the broader public. Without the involvement of these volunteer not-for-profit recreational groups, the quantity and quality of recreational trails and recreational facilities open to the public would be compromised. It is important that these groups should not be exposed to claims for negligent maintenance in order to ensure the continued availability of recreational trails and facilities.

This bill, by expanding and clarifying liability protections in GOL §9-103, will limit the number of lawsuits initiated against landowners who open their lands to the public and against recreational groups who develop and maintain trails and facilities for public use. In turn, such protection will result in additional opportunities for recreational pursuits on private lands, including activities currently not enumerated in statute, as well as enumerated activities such as fishing, hunting and trapping.

Legislative history

2007-08: S.4263 2006: S.8188 - Passed Senate

Fiscal implications

None.

Effective date

This act shall take effect immediately.