FEDERAL LANDOWNER LIABILITY FOR INJURED RECREATIONAL USERS (1) WHETHER ALLEGED NEGLIGENT CONDUCT INVOLVES AN ELEMENT OF JUDGMENT OR CHOICE.

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1 FEDERAL LANDOWNER LIABILITY FOR INJURED RECREATIONAL USERS LIMITED IMMUNITY FEDERAL TORT CLAIMS ACT DISCRETIONARY FUNCTION IMMUNITY: 2 PRONG TEST (1) WHETHER ALLEGED NEGLIGENT CONDUCT INVOLVES AN ELEMENT OF JUDGMENT OR CHOICE. NOT JUDGMENT OR CHOICE WHERE STATUTE, REGULATION, OR POLICY PRESCRIBES SPECIFIC COURSE OF CONDUCT NO DISCRETION IF EE TO ADHERE TO DIRECTIVE. (2) IF JUDGMENT OR CHOICE, WHETHER GOVT DECISION BASED UPON PUBLIC POLICY CONSIDERATIONS DECISIONS GROUNDED IN SOCIAL, ECONOMIC, & POLITICAL POLICY. IF TWO PRONG TEST SATISFIED, THEN ALLEGED NEGLIGENCE IMMUNE FROM FTCA LIABILITY UNDER NO LIABILITY FOR PERFORMANCE OR FAILURE TO PERFORM DISCRETIONARY FUNCTION, WHETHER OR NOT DISCRETION IS ABUSED. IMMUNE DISCRETIONARY FUNCTIONS INCLUDE ADMINISTRATORS IN ESTABLISHING PLANS, SPECIFICATIONS OR SCHEDULES OF OPERATIONS SUBORDINATES CARRYING OUT POLICY JUDGMENT. NATURE OF CONDUCT, RATHER THAN STATUS OF ACTOR IS DETERMINATIVE WHETHER CONGRESS INTENDED TORT IMMUNITY FOR SUCH CONDUCT. STATE RECREATIONAL USE STATUTES FEDERAL TORT CLAIMS ACT (FTCA): U.S. LIABLE "LIKE A PRIVATE INDIVIDUAL" UNDER LAW OF STATE WHERE INJURY OCCURRED. STATE RECREATIONAL USE STATUTES LOWERS LANDOWNER LIABILITY STANDARD FROM ORDINARY NEGLIGENCE TO WILLFUL OR WANTON MISCONDUCT. 1

2 EVERY STATE (ALASKA - Unimproved Land Immunity) Virginia Recreational Use Statute Duty of care and liability for damages of landowners to hunters, fishermen, sightseers, etc. BASED IN WHOLE OR PART ON 1965 MODEL STATE STATUTE PURPOSE: ENCOURAGE OWNERS OF LAND TO MAKE LAND & WATER AREAS AVAILABLE FOR PUBLIC REC. PURPOSES BY LIMITING LIABILITY TO PERSONS ENTERING FOR REC. PURPOSES OWNER OPENS LAND FOR PUBLIC RECREATION USE FREE OF CHARGE, NO DUTY TO GUARD WARN OR MAKE PREMISES REASONABLY SAFE FOR SUCH USE. EXCEPTIONS WILLFUL/WANTON MISCONDUCT FEE OR CONSIDERATION WILLFUL/WANTON (MALICIOUS) MISCONDUCT APPLIES TO REC. USER TRADITIONAL TRESPASSER STANDARD. WILLFUL, INTENT TO INJURE WANTON, UTTER DISREGARD FOR PHYSICAL WELL-BEING OF OTHERS. FEE EXCEPTION, IF MONEY PAID FOR USE OF PREMISES WHERE INJURY OCCURRED. CONSIDERATION, ANY ECONOMIC BENEFIT CONFERRED FOR USE OF LAND. IF ENTRANCE FEE, IMMUNITY EXCEPTION FOR ENTIRE PREMISES. CONGRESS REQUIRED MINIMAL ENTRY FEES VOIDS RUS IMMUNITY LAND DEFINED: LAND, ROADS, WATER, WATERCOURSES, & BLDGS, STRUCTURES, & MACHINERY OR EQUIPMENT WHEN ATTACHED TO REALTY. OWNER DEFINED POSSESSOR OF A FEE INTEREST, A TENANT, LESSEE, OCCUPANT OR PERSON IN CONTROL OF THE PREMISES. RECREATIONAL PURPOSES INCLUDES, BUT IS NOT LIMITED TO, AND COMBINATIONS OF, 2

3 HUNTING, FISHING, SWIMMING, BOATING, CAMPING, PICNICKING, HIKING, PLEASURE DRIVING, NATURE STUDY, WATER SKIING, WINTER SPORTS, AND VIEWING OR ENJOYING HISTORICAL, ARCHEOLOGICAL, SCENIC, OR SCIENTIFIC AREAS. "CHARGE": THE ADMISSION PRICE OR FEE ASKED IN RETURN FOR INVITATION OR PERMISSION TO ENTER OR GO UPON THE LAND. DAM & RESERVOIR RECREATION FEDERAL FLOOD CONTROL IMMUNITY JAMES v. UNITED STATES 478 U.S. 597 (1986) Rec users swept through dam gates inadequate warnings, buoys conscious govt indifference. Flood Control Act: "no liability of any kind... upon U.S. for any damage from or by floods or flood waters at any place." Outlines immunity in sweeping terms, difficult to imagine broader language. The injuries occurred as a result of the release of waters from reservoirs that had reached flood stage. Legislative history, sovereign immunity for "any" liability for flood control. Whether alleged mismanagement of recreational activities wholly unrelated to flood control. The manner in which to convey warnings, including the negligent failure to do so, is part of the "management" of a flood control project. Follow the plain language of sec. 702c hold that the Government is immune from suit in these cases. FEDERAL LANDOWNER LIABILITY FOR INJURED RECREATIONAL USERS REASONABLE CARE & WARNINGS 3

4 FEDERAL TORT CLAIMS ACT (FTCA) DEFINES PARAMETERS OF LIABILITY FTCA: U.S. LIABLE "LIKE A PRIVATE INDIVIDUAL" UNDER LAW OF STATE WHERE INJURY OCCURRED. LOOK TO LANDOWNER LIABILITY FOR NEGLIGENCE UNDER STATE LAW WHERE INJURY OCCURRED. THE RISK REASONABLY TO BE PERCEIVED DEFINES THE DUTY TO BE OBEYED. PERCEIVED RISK - FORESEEABILITY, NOT MERE POSSIBILITY, BUT PROBABILITY. BASED UPON ACTUAL KNOWLEDGE OR UNDERSTANDING COMMON TO FIELD, INJURY OCCURRED BEFORE LIKELY AGAIN UNLESS PRECAUTIONS. NEGLIGENCE - UNREASONABLE RISK OF INJURY WHICH CAUSES INJURY UNREASONABLE - PRESUPPOSES IMBALANCE OF RELATIVE KNOWLEDGE OF RISK BETWEEN DEFENDANT AND PLAINTIFF. IF RELATIVE RISK KNOWLEDGE EQUAL, NOT UNREASONABLE. PLAINTIFF SHOULD BE ABLE TO LOOK OUT REASONABLY FOR OWN SAFETY. IF SITUATION WHAT YOU SEE IS WHAT YOU GET IN TERMS OF GENERAL SCOPE OF RISK OF INJURY. LANDOWNER DUTY OF CARE INVITEES: PROVIDE REASONABLY SAFE PREMISES INSPECT REPAIR OR REMOVE KNOWN OR DISCOVERABLE HAZARDS WITHIN A REASONABLE TIME IF REPAIR OR REMOVAL IMPOSSIBLE OR IMPRACTICAL PROVIDE AN ADEQUATE WARNING ADEQUATE WARNING TAKES A HIDDEN HAZARD AND MAKES THE GENERAL SCOPE OF THE RISK OPEN & OBVIOUS 4

5 CONVERSELY, NO DUTY TO WARN OF WHAT WOULD ALREADY BE OBVIOUS THROUGH THE REASONABLE USE OF ONE'S SENSES. CERTAIN RISKS (FIRE, WATER, & HEIGHTS) CONSIDERED OPEN & OBVIOUS WHICH ANYONE OLD ENOUGH TO BE AT LARGE IS EXPECTED TO KNOW, APPRECIATE & AVOID. GENERAL SCOPE OF RISK ALREADY COMMUNICATED, KNOWN THROUGH EXPERIENCE, PERCEIVED THROUGH SENSES, PHYSICAL CHARACTERISTICS - FAILURE TO WARN NOT CAUSE. GIVEN AN UNREASONABLY DANGEROUS CONDITION, I.E., HIDDEN, LATENT, AN ADEQUATE WARNING, COMMUNICATES, EDUCATES, REGARDING GENERAL SCOPE OF RISK DOES NOT LEAVE TOO MUCH TO THE IMAGINATION, BUT NOT NECESSARY TO WARN OF EVERY SPECIFIC DANGER, SIMPLY COMMUNICATE GENERAL SCOPE OF RISK. ONCE REASONABLE PERSON HAS NOTICE OF PERCEIVED RISK, A DUTY IS OWED TO LOOK OUT REASONABLY FOR ONE'S OWN SAFETY. 5