Recreational Land Use Law

Before you read this page, please be advised that we are not lawayers and are not giving legal advice. We simply did some research when confronted with a customers request. what we found is below, and the Connecticut General Assembly website where we found the information is sited below, as well as their full report.

 

Often, our customers are looking for a place to play paintball that is in Danbury. Others simply do not want to go to a commercial facility. Paintball should never be played in public areas without express government permission (municipal for town property, state for state parks, federal for federal lands). This leaves the last option, private land. However, people are often not ready to open up their land to strangers for a game of pick-up paintball. The following State report should explain the State law is it pertains to “recreational land use”. You should read the report and draw your own conclusions.

It can also be found here: http://www.cga.ct.gov/2004/rpt/2004-R-0203.htm

Topic:
LAND USE; LIABILITY (LAW); RECREATION (GENERAL);
Location:
LIABILITY, LEGAL;

OLR Research Report

 

 

February 24, 2004 2004-R-0203
LIABILITY–LANDOWNERS–RECREATIONAL USE
By: George Coppolo, Chief Attorney

You asked if a private landowner who allows his land to be used by people who want to access recreational facilities on someone else’s land is immune from liability. If not, you asked whether the legislature could provide some type of immunity? Finally you asked whether the landowner’s status as a nonprofit entity matters. Our office is not authorized to give legal opinions and this should not be considered one.

SUMMARY

State law gives partial immunity to landowners who make all or a portion of their land available to the public without charge for recreational purposes. This immunity applies to injuries people sustain while using the land for recreational purposes. The law defines “recreational purposes” as including, but not limited to, hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, snow skiing, ice skating, sledding, hang gliding, sport parachuting, hot air ballooning, and viewing, or enjoying historical archaeological, scenic, or scientific sites (CGS § 52-557 f (4)).

It is not clear whether this law covers a landowner who allows others to access his land to reach land owned by someone else where the recreational activity will occur. The law does not explicitly deal with this issue and we could not locate any case that addresses it. A good argument can be made that the immunity law applies if the landowner allows people to walk or drive over his land to reach the other land because the law defines “recreational purposes” as including hiking and “pleasure driving”. But without a court case interpreting the law to cover this situation, it is not clear whether the immunity applies.

It appears the legislature has the power to extend this immunity protection to landowners who allow people to use their land to access other land for recreational purposes.

A landowner’s status as a nonprofit does not affect the applicability of the landowner immunity law. But, other laws give officers, directors, and volunteers of nonprofit organizations certain protections that might apply depending on the circumstances. For example officers and directors of tax- exempt nonprofit organizations are exempt from liability for damage or injury resulting from any act, error, or omission made in the exercise of their policy or decision-making responsibilities, if they were acting in good faith and within the scope of their official functions and duties.

RECREATIONAL LAND USE IMMUNITY LAW

Under CGS § 52-557g, landowners who make all or a portion of their land available to the public for no charge owe no duty of care to keep the land safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on the land to those entering for recreational purposes. Further, any landowner who invites or permits any person to use his land for recreational purposes without charge does not thereby: (1) make any representation that the land is safe for any purpose, (2) confer upon the person using the land for recreational purposes a legal status entitling him to a duty of care by the owner, or (3) assume responsibility or incur liability for any injury caused by the owner’s act or omission.

But, this statutory immunity from common law liability does not apply to (1) willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity or (2) injuries suffered in any case where the landowner charges people who use the land for recreational purposes (CGS § 52-557h).

Willful or malicious conduct has been defined to mean the actor both intended his conduct and that it harm another (Warner v. Leslie Elliott Constructors, 194 Conn. 129, 138-9). The term intentional harm has been extended to circumstances where the actor knew of a substantial certainty of harm and nonetheless proceeds (Suarez v. Dickmont Plastice Corp. , 229 Conn. 99, 122).

Related Immunity Laws

CGS § 52-557j confers immunity on landowners for injuries sustained by people using their land without charge while operating snowmobiles, all-terrain vehicles, motorcycles, minibikes, or minicycles. The immunity does not apply to willful or malicious conduct.

CGS § 7-12 makes property owners who maintain open water holes, which have been approved for fire fighting immune from liability in connection with the water hole.

CGS § 52-557k grants immunity to landowners who allow the public to harvest firewood, unless the injury is caused by the owner’s failure to warn of a dangerous, hidden hazard actually known to the owner.

IMMUNITY OF DIRECTORS, OFFICERS, AND TRUSTEES OF NONPROFIT TAX-EXEMPT ORGANIZATIONS

Any person serving without compensation as a director or officer of a nonprofit organization qualified as a tax-exempt organization under the federal Internal Revenue Code is immune from civil liability for damage or injury resulting from any act, error, or omission made in the exercise of the person’s policy or decision-making responsibilities, if he was acting in good faith and within the scope of his official functions and duties (CGS § 52-557m). Tax-exempt organizations can include clubs organized for pleasure, recreation, and other nonprofitable purposes. Substantially all of the activities must be for such purposes and no part of any net earnings can benefit any private shareholders. They can also include nonprofit corporations organized and operated exclusively for religious, literary, or educational purposes, or to foster amateur sports, or the prevention of cruelty to children or animals. They can also include fraternal beneficiary societies, orders, or associations.

The immunity does not apply if the damage or injury was caused by reckless, willful, or wanton misconduct (CGS § 52-557m). Thus the immunity is limited to acts of negligence.

CGS § 52-557m offers a broad protection from civil liability but it does not cover every nonprofit organization’s director or officer. For example, if a director or officer receives compensation in any amount for performing his duties, he is not protected by the law. Nor does the law provide total immunity even for those who are covered. For example, it does not cover such activities as routine, non decision-making functions or operating a motor vehicle while carrying out the organization’s duties.

FEDERAL IMMUNITY LAW

The Volunteer Protection Act of 1997 (P. L 105-19) became effective in September of 1997. In addition to establishing immunity for acts of negligence, it also establishes a clear and convincing standard of proof for punitive damages to be awarded against volunteers and makes them liable for noneconomic damages (pain and suffering) only to the degree their wrongdoing caused the harm.

The act preempts state laws to the extent they are inconsistent with it. It does not preempt state laws that provide additional protection from liability. But states can opt out of the law by passing an act explicitly doing so. Connecticut has not opted out. Thus, the law applies here.

Scope of Limitation on Liability

Under the act, no volunteer of a nonprofit organization or governmental entity can be liable for harm caused by his act or omission on its behalf if:

1. he was acting within the scope of his responsibilities at the time of the act or omission;

2. he was properly licensed, certified, or authorized by the appropriate authorities in the state where the harm occurred;

3. the harm was not caused by willful or criminal misconduct, gross negligence, reckless misconduct, or a conscious flagrant indifference to the rights or safety of the person harmed by the volunteer; and

4. the harm was not caused by the volunteer operating a motor vehicle, vessel, aircraft, or other vehicle for which the state requires the operator or owner to possess a license or maintain insurance.

The act specifies that it does not affect (1) any civil action brought by the nonprofit organization or governmental entity against the volunteer; or (2) such organization’s or entity’s liability with respect to harm a volunteer causes.

The act also specifies that a state law is not inconsistent with the federal act because it:

1. requires the organization or entity to adhere to risk management procedures including mandatory training of volunteers;

2. makes the organization or entity liable for the volunteer’s acts or omissions to the same extent as an employer is liable for its employees’ acts or omissions;

3. subjects the volunteer to liability if the civil action was brought by a state or local government officer under state or local law; or

4. limits liability protection to cases where the organization or entity provides a financially secure source of recovery such as an insurance policy for those harmed by the volunteer.

Exemptions to Immunity

The act does not apply to any misconduct that:

1. constitutes a crime or act of international terrorism as defined by federal law for which the volunteer has been convicted;

2. constitutes a hate crime as defined by federal law;

3. involves a sexual offense as defined by state law for which the volunteer has been convicted;

4. involves misconduct for which the volunteer has been found to have violated a federal or state civil rights law; or

5. occurred when the volunteer was under the influence of intoxicating liquor or any drug.

Limitation on Punitive Damages

The act prohibits the award of punitive damages against a volunteer unless the person harmed establishes by clear and convincing evidence that the harm was proximately caused by the volunteer’s actions which constituted willful or criminal misconduct, or a conscious, flagrant indifference to the injured person’s rights or safety.

Liability for Noneconomic Loss

Under the act, a volunteer may be liable for noneconomic loss allocated to him in direct proportion to the percentage of his responsibility for the harm. The act requires the jury (or judge in a nonjury trial) to determine the volunteer’s percentage of responsibility for the harm

GC: ts