Sarah is a member of the Lunchtime Running Club, sponsored by the local YMCA. The YMCA is within a quarter mile of a county park, which has a series of paths and trails that YMCA running club members use extensively. When Sarah joined the club, she was told that $2 of the running club’s annual fee would be turned over to the county for trail maintenance.

There are at least a dozen states where charging a $2 fee for trail maintenance could cause your public entity to lose its recreational immunity.

After sustaining injuries from a bad fall caused in part by a washout of the trail, Sarah filed a claim against the county for liability. When the claim was presented to the county’s legal counsel, the risk manager was surprised to learn that the county had jeopardized its reliance on recreational immunity protection when it required a $2 annual user fee from running club members. The county was ultimately held responsible for $37,600 in medical bills and related costs because it had lost its recreational immunity when it charged the $2 fee.

Would you willingly sell your recreational immunity for $2?

You may not realize it, but there are at least a dozen states where charging a $2 fee for trail maintenance could cause your public entity to lose its recreational immunity. There may be hundreds of public entities charging nominal recreational access fees without realizing that they have given up their immunity.

States have differing views on user fees and immunity. Most states have some form of recreational immunity statute that generally gives immunity for recreational activities where no fee is charged. Nearly every state restricts recreational immunity protection when a fee is more than “nominal” or when it is considered an admission fee. Most states agree that a vehicle entry fee to a public park does not cause the loss of recreational immunity for the entity. Similarly, the cost of a fishing license is not considered an admission fee, but charging $4 per dirt bike to use the motorcycle dirt track constitutes payment for use and negates the recreational immunity protection.

Courts often take the position that a higher standard of care is required where a fee is charged, and charging even a nominal fee may waive your public entity’s recreational immunity.

Other issues that may affect a recreational immunity defense

• “Unimproved” vs. “improved” sites: Some jurisdictions limit recreational immunity to “unimproved” sites and, by inference, deny recreational immunity protection for “improved” sites. Is a municipal swimming pool or a sandy beach near a lake an improved site? In one state, a recreational lake created by a dammed river is considered an improved site; in other states, a damned river is considered unimproved.
• Attractive nuisance hazards: Courts expect attractive nuisance hazards to be abated or have restricted access. Public entities with uncontrolled attractive nuisance hazards are unlikely to rely on protection from recreational immunity. However, disagreements may arise over whether a site is an attractive nuisance. In one state, for example, irrigation canals are specifically exempt from being characterized as an attractive nuisance. Most attractive nuisance statutes apply only to minors or young children, but ease of access by children should not be the only consideration when deciding whether to control the hazard.
• Failure to act: Recreational immunity does not apply in situations where the public entity willfully, maliciously or deliberately caused injury. This assumes that the public entity knew of the dangerous condition and failed to take action. For example, a park district was judged to be deliberately indifferent and lost its recreational immunity defense when it was determined that it knew about a hot spring’s extremely high temperatures, but had failed to warn the public.
• Recreational requirement: An activity must be recreational for immunity to be in effect. In the case where a county collected a fee from weekend woodcutters to harvest firewood from downed trees (in a forest setting), the county was denied the recreational immunity defense when a woodcutter was injured. The court did not view the woodcutter’s activity as recreational.
• Commercial vendors: Immunity protection does not extend to vendors or for commercial ventures granted permission to use the venue for commerce. Immunity would probably not extend to the local Lion’s Club that sets up a snack bar at the county’s cross-country ski trail park.
• Access issues: Parking lots and walking paths that provide access to a recreational area are viewed as part of the recreational site and may be included in the liability protection afforded by recreational immunity. A claim for injuries sustained while en route to a recreational activity, on a property that facilitates the use of the recreational property, may fall under the protection of your jurisdiction’s recreational immunity statute.

Protection varies widely from state to state

Although public land managers are acutely aware of the liability concerns of using parks and undeveloped lands, there are existing laws in most jurisdictions that provide protection and should help alleviate the gravity of those liability concerns.

However, each jurisdiction will have statutes that offer different levels of protection. When it comes to recreational immunity, the truism is: When you have seen one jurisdiction’s recreational immunities, you have only seen one. One jurisdiction is likely to be different from another.

For example, some states hold public agencies to the same negligence standards as private individuals. Even so, it is likely that public entities are entitled to protection under recreational use statutes and governmental immunity statutes to escape liability for recreation user injuries. Other states hold public entities to different standards than private individuals and may have also enacted recreational liability immunity legislation specifically for public entities.

All states have a few unusual interpretations for recreational immunity. For example, in one state, a municipality is protected by recreational immunity for injury to swimmers at the municipal swimming pool (even though an access fee is paid), but the recreational immunity does not protect the municipality for an injury to a spectator at the pool who has paid an access fee. In this state, it appears that the recreational immunity statute protects the entity from liability for injuries to participants, but not to spectators.

Check with qualified legal counsel

Keep in mind that recreational immunity protection is provided by statute - and these statutes are subject to change, clarification and revision by courts and legislatures. It is important to check legislative changes and current case law to understand how effectively your organization is protected by recreational immunity. The prudent risk manager will check with qualified legal counsel on issues when the organization is relying on recreational immunity protection. Taking measures to adequately warn the public about known dangers is one of several important considerations in helping retain a recreational immunity defense.