Illinois Association of Defense Trial Counsel Springfield, Illinois www.iadtc.org 800-232-0169 IDC Quarterly Volume 21, Number 1 (21.1.30) Property Insurance By: Tracy E. Stevenson Robbins, Salomon & Patt, Ltd. Don t Forget the Immunity Offered by the Recreational Use of Land and Water Areas Act We often read articles about lawsuits in which plaintiffs allege negligence against various entities including local governments, villages, and cities. We hear about injuries in parks, playgrounds, and other recreational venues. What we don t often hear about is the immunity to charges of negligence contained within the Recreational Use of Land and Water Areas Act ( Recreational Use Act or Act ). 745 ILCS 65/1, et seq. This article will discuss the Recreational Use Act, the defenses to causes of action which potentially fall within the Act, and when the Act may and may not be utilized. The Purpose of the Act The Recreational Use Act became effective on August 2, 1965. The purpose of th[e] Act is to encourage owners of land to make land and water areas available to any individual or members of the public for recreational or conservation purposes by limiting their liability toward persons entering thereon for such purposes. 745 ILCS 65/1. Case law has concluded that the Act not only provides protection to those who open existing facilities to the public, but also to owners who negligently design and construct lands specifically for recreational use. Stevens v. United States, 472 F. Supp. 998 (Central Dist. Ill. 1979). In order to seek immunity under the Act, a land owner need not allow all persons to use the property at all times, but need only allow the general public access only during certain seasons or days of the week. Snyder v. Olmstead, 261 Ill. App. 3d 986, 934 N.E.2d 756 (3rd Dist. 1994). Specifically, under the terms of the Recreational Use Act, a land owner may not be held liable to a user merely if by the exercise of reasonable care the owner could have discovered the existence of a dangerous condition. Such an interpretation would defeat the purpose of the Act, which is to encourage opening up of a land by granting statutory immunity which would not otherwise have existed. Johnson v. Stryker Corporation, 70 Ill. App. 3d 717, 388 N.E.2d 932 (1st Dist. 1979). Under the express terms of the Act: Definitions & Standards Within the Act Except as specifically recognized by or provided in Section 6 of this Act, an owner of land owes no duty of care to keep the premises safe for entry or use by any person for recreational or conservation purposes, or to give any warning of a natural or artificial dangerous condition, use, structure, or activity on such premises to persons entering for such purposes. Page 1 of 5
745 ILCS 65/3. Further: Nothing in this Act shall be construed to: (a) Create a duty of care or ground of liability for injury to persons or property. (b) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this Act to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care. 745 ILCS 65/7. While the purpose of the Recreational Use Act appears quite broad in its grant of immunity, it is limited in scope to protect those individuals who permit the public to use their land without charge subject to expressly defined terms. Charge means an admission fee for permission to go upon the land, but does not include: the sharing of game, fish, or other products of recreational use; benefits to or arising from the recreational use; or contributions in kind, services, or cash made for the purpose of properly conserving the land. 745 ILCS 65/2(d). To illustrate, if you enter an amusement park after paying the daily admission fee, the park owner may be liable for negligence in the event of an injury. On the other hand, if you enter a venue covered by the Act and no admission fee is charged for entry, the entity that owns the venue may only be liable pursuant to a willful and wanton standard. (See 745 ILCS 65/6(a) discussed more fully below). The term owner is also defined by the Act. Specifically, owner includes the possessor of any interest in land, whether it is a tenant, lessee, occupant, the State of Illinois and its political subdivisions, or persons in control of the premises. 745 ILCS 65/2(b). Thus, the Act, to best enforce its purposes, provides immunity through the entire chain of ownership or possessory interest and does not simply afford protection to the titled owner of the land or waterway in question. The term land includes roads, water, water courses, private ways and buildings, structures, and machinery or equipment when attached to the realty, but does not include residential buildings or residential property. 745 ILCS 65/2(a). For example, an owner of a residential home who opens it to the public for purposes of permitting use for a haunted house or a holiday display is likely not protected under the Act. What Acts are Covered? The recreational use immunity provided for by the Act provides that land owners have no duty to keep premises safe for recreational purposes or to provide warnings to those who enter the land for recreational purposes. This immunity applies if a person uses the premises or enters for recreational purposes, whether or not the land owner allowed that individual or others to use the land for recreational purposes. Jerrick v. Norfolk & Western Railway Company, 124 F.Supp.2d 1122, Aff d., 290 F.3d 914 (N.D. Ill. 2000). Outside of the Act there are two limited exceptions to the rule that a defendant has no duty to protect a plaintiff from an open and obvious condition. Ward v. K mart Corp., 136 Ill. 2d 132, 147, 554 N.E.2d 223 (1990). The distraction exception provides that a property owner owes a duty of care if there is a reason to expect that the plaintiff s attention might be distracted so that he would not discover the obvious condition. Ward, 136 Ill.2d at 149-50 (adopting the reasoning in Restatement (Second) of Torts, 343A, comment f, at 220 (1965)). The proper inquiry is whether a defendant should reasonably anticipate injury to those entrants on his premises who are generally exercising reasonable care for their own safety, but may reasonably be expected to be distracted, as when carrying large bundles. Ward, 136 Ill.2d at 152. The Jerrick case explains that the above distraction exception which may create an ordinary duty of care even under the open Page 2 of 5
and obvious exception, only goes to the duty of care that has been expressly abrogated by the Illinois Recreational Use Act immunity. It does not go to the issue of recklessness which circumvents immunity. Jerrick, 124 F. Supp. 2d. at 1126. Numerous cases set forth examples of activities upon lands which are open to public use that may be immune from negligence. In one such case, the government s failure to adequately warn of a danger of swimming in a rocky lake in a wildlife refuge was not willful or malicious under the terms of the Act. See Davis v. United States, 716 Fed. 2d 418 (7th Cir. 1983). Even a railroad s removal of a railroad bridge on an abandoned line, when the railroad allegedly knew that people were driving off-road vehicles in the area, did not amount to willful and wanton conduct so as to remove the immunity provided. Jerrick, 124 F. Supp. 2d 1122. The court in Jerrick made clear that absent evidence that there was a known risk for the railroad, a willful and wanton claim could not survive. The Jerrick court found that the railroad had no notice of any accident or safety complaints by recreational vehicles upon the land or at the site for the preceding twelve years even in an area that was regularly swarming with off-road recreational vehicles. Therefore, its actions in removing the railroad ties could be deemed only negligent. What is Excluded From Immunity? There are two express exclusions to the immunity provided within the Recreational Use Act. 745 ILCS 65/6 sets forth these exclusions as follows: Nothing in this Act limits in any way any liability which otherwise exists: (a) For willful and wanton failure to guard or warn against a dangerous condition, use, structure, or activity. (b) For injury suffered in any case where the owner of land charges the person or persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease is not a charge within the meaning of this Section. (745 ILCS 65/6). Willful and Wanton Allegations The Illinois Supreme Court has set the standard for willful and wanton misconduct as any act that is: intentional or... committed under circumstances exhibiting a reckless disregard for the safety of others, such as a failure, after knowledge of impending danger, to exercise ordinary care to prevent it or a failure to discover the danger through recklessness, or carelessness when it could have been discovered by ordinary care. O Brien v. Township High School District 214, 83 Ill. 2d 462, 415 N.E.2d 1015, 1018 (2002). Any allegation of negligence that fails to meet the definition of willful and wanton may be subject to immunity under the Act. In order to survive a preliminary motion to dismiss, any allegations of willful and malicious conduct as defined within the exception to the Act must be specifically alleged. Conclusory allegations or mere characterizations of alleged acts as willful are not sufficient. Mitchell v. Waddel, 189 Ill. App. 3d 179, 544 N.E.2d 1261 (4th Dist. 1989). To that effect, 745 ILCS 65/6(a) of the Act addresses the liability when an owner of land used for recreational purposes acts in a willful and wanton manner or willfully and wantonly fails to guard or warn against a dangerous condition, use, structure, or activity upon the land. Thus, in order to prevail under the Act, a party must allege and ultimately prove that the owner of land, as that person is defined, acted in a willful and wanton manner in causing the injury and/or caused the condition upon the land complained of. In instances where the Illinois Recreational Use Act applies, a plaintiff may not merely allege Page 3 of 5
that the land owner acted negligently, but must establish that the owner acted willfully and wantonly in order to prevail. Cacia ex rel. Randolph v. Norfolk & Western Railroad Company, 290 F. 3d 914 (7th Cir. 2002). To establish a willful and wanton condition, the property owner must have actual or constructive knowledge that a concealed condition created a high probability that a person could fall or sustain substantial physical injury and that the owner failed to undertake any measure to remedy the danger. McDermott v. Metropolitan Sanitary District, 240 Ill. App. 3d 1, 607 N.E.2d 1270 (1st Dist. 1992). Charging Fees for Access The second exception to the immunity afforded by the Recreational Use Act is that of charging for public use of the land or waterways. Thus, a private party charging a fee for use of their property might be subject to liability in a negligence claim even under the potential protection of the Act. Baggio v. Chicago Park District, 289 Ill. App. 3d 768, 682 N.E.2d 429 (1 st Dist. 1997). For example, a farm owner who opens his land to the public to permit pumpkin picking during October, but charges a fee for the privilege, may have liability in negligence. However, immunity may also be barred in the instance in which a land owner generally charges persons for recreational use of the land but, for some reason, the normal fee was not paid by the injured user of the property. The mere fact that a fee was not paid does not always absolve an owner of liability. The court in Phillips v. Community Center Foundation and Children s Farm, 238 Ill. App. 3d 505, 606 N.E.2d 447 (1 st Dist. 1992) addressed this issue when a plaintiff was injured while riding upon a horse on the defendant s property. The plaintiff in that case paid no fee. However, because a fee was usually paid for riding the horse upon the property, the owner was not absolved simply because in this instance the fee was not charged. In another case, Vaughn v. Barton, 402 Ill. App. 3d 1135, 933 N.E.2d 355 (5th Dist. 2010), the court held that the negligence action brought by a spectator who was injured by a thrown baseball while watching a Little League game from the bleachers free of charge, fell within the scope of the Recreational Use Act and thus, the land owner was provided immunity. There, the children who were playing in the Little League game were charged a fee to play in the league. However, the Vaughn court held that the fee charged to the children did not amount to an admission fee to come upon the land, per the definition, but rather served as a financial incentive to improve the property for the purpose of the public use. According to the court, the fee constituted a payment of cash made for the purpose of properly conserving the land which is specifically excluded from the definition of charge under the Recreational Use Act. 745 ILCS 65/2(d) (West 2002). Conclusion The Recreational Use of Land and Water Areas Act was created to encourage land owners to provide recreational area for the public at large to use. Thus, immunity is granted to those people who allow the public to use their land and waterways to benefit society. The two exceptions to the immunity provided must be pled with specificity and detail. However, even those two exceptions must be reviewed in the context of the greater purpose of the Act. The Recreational Use of Land and Water Areas Act is a broad statute and must be considered to provide a defendant landowner all of the protections which are granted within the Act in addition to the additional defenses provided by other tort immunity statutes and affirmative defenses. About the Author Tracy E. Stevenson is a partner in the Chicago firm of Robbins, Salomon & Patt, Ltd., where she concentrates her practice in medical malpractice defense and insurance defense. She has defended cases on behalf of physicians and hospitals and represented various major insurance companies in claims involving fraud. Ms. Stevenson also represents corporations in litigation matters including TRO s and shareholder actions. She is licensed in Michigan as well as Illinois and speaks at various seminars around the country. Page 4 of 5
About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org. Statements or expression of opinions in this publication are those of the authors and not necessarily those of the association. IDC Quarterly, Volume 21, Number 1. 2011. Illinois Association of Defense Trial Counsel. All Rights Reserved. Reproduction in whole or in part without permission is prohibited. Illinois Association of Defense Trial Counsel, PO Box 3144, Springfield, IL 62708-3144, 217-585-0991, idc@iadtc.org Page 5 of 5