DNR Immunity Law email campaign

[zukkev]

10/19/09

Leonard, Thank you for your message regarding Recreational Immunity Law (RCW 4.24.210 - "liability of owners or others in possession of land and water areas for injuries to recreation users - limitations." 1967).

Legislative intent regarding the above is stated "Nothing in this section shall prevent liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted."

In 2001, the Washington State Supreme Court found in favor of the state in Davis v/ State of Washington explaining that an injured recreational user must prove all four elements in the injury-causing condition or the landowner is not liable: 1) known 2) dangerous 3) artificial and )4 latent.

Over the past six years legislation has been brought before the body addressing liability which have not been adopted. Several measures dealt with a access fee to be used in immunity statute. As this is of interest to you and family, I will keep informed whether something does come up in the 2010 session.
Thank you for bringing this to my attention.

Senator Dale E. Brandland


Bunny Hooper
Sr. Legislative Assistant
Senator Dale E. Brandland
360-786-7682

Interesting...

 

[zukkev]

I got the same letter in my email...:eeek:

Thank you for your message regarding Recreational Immunity Law (RCW 4.24.210 - "liability of owners or others in possession of land and water areas for injuries to recreation users - limitations." 1967).

Legislative intent regarding the above is stated "Nothing in this section shall prevent liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted."

In 2001, the Washington State Supreme Court found in favor of the state in Davis v/ State of Washington explaining that an injured recreational user must prove all four elements in the injury-causing condition or the landowner is not liable: 1) known 2) dangerous 3) artificial and )4 latent.

Over the past six years legislation has been brought before the body addressing liability which have not been adopted. Several measures dealt with a access fee to be used in immunity statute. As this is of interest to you and family, I will keep informed whether something does come up in the 2010 session.
Thank you for bringing this to my attention.

Senator Dale E. Brandland


Bunny Hooper
Sr. Legislative Assistant
Senator Dale E. Brandland
360-786-7682

 

[sly-yota]

i havent even gotten one yet.. no one <3's me :booo:

 

[nate8887]

i havent even gotten one yet.. no one <3's me :booo:

x2 :booo:

 

[Dusten]

Dusten,

Thank you for writing.

I am familiar with the concerns you expressed, as many others have echoed your sentiments over the years, and there have been several efforts made to reform the language of the statute.

Below you'll find some back ground information on efforts made in our state to reform landowner liability statute. The burden of proof in the courts is quite stringent, but apparently not stringent enough to persuade more landowners to open up or allow more folks on their privately owned open spaces. As you can see, it can take years to enact or change any given law.

I appreciate your suggestion. We will be working with a shorter, supplemental legislative session revolving mostly around the increasing state budget deficit. This means that there will not be much time to develop and pass legislation, but that does not mean that efforts could not or will not be made regarding reform of the statute as currently written. No guarantees in the legislative process.

But, I will keep your suggestion in mind as we inch closer to January.

Regards,

Mike


Landowner Liability: Opening land to recreation users

RCW 4.24.210, "Liability of owners or others in possession of land and water areas for injuries to recreation users – Limitations." (1967)

"Nothing in this section shall prevent liability of a landowner or others in lawful possession and control for injuries sustained to users by reason of a known dangerous artificial latent condition for which warning signs have not been conspicuously posted."

In 2001, the Washington State Supreme Court found in favor of the state in Davis v. State of Washington explaining that an injured recreational user must prove all four elements in the injury-causing condition or the landowner is not liable: 1) known 2) dangerous 3) artificial and 4) latent.


* The issue of landowner liability has been discussed over the years and a number of bills have been introduced. The Department of Natural Resources convened a work group on ways to enhance recreational opportunities and recommended reforming the liability statute.
* The concern continues among landowners that it is safer and much less expensive to post "No Trespassing" signs than to defend a lawsuit – even if they expect the outcome to be favorable. In addition, there is the uncertainty of court interpretations. As a result, recreational users are denied access they might otherwise enjoy.


SB 5422-S (2009) – by Senators Parlette, Stevens and others (died in Senate Rules)
Summary of Bill: Limits liability for making certain land and water areas available for recreational use under a hydroelectric license.

SB 5215 (2007) – by Senators Jacobsen and Kline (died in NR Committee)
Bill Summary: Provides that a daily, seasonal, or annual charge for access to privately owned lands for the purposes of outdoor recreation where all revenues are devoted to land management costs are not fees.

SB 6354 (2006) – by Senators Sheldon and Stevens (died in Senate Rules)
Summary of Bill: A daily charge not to exceed $20 per person, per day, for access to a
publicly owned off-road vehicle (ORV) park or facility, for the purposes of ORV use, is not considered a fee for the purposes of the recreation use immunity statute.

HB 1195 (2003) – by Rep. Delvin and others (Senate vote 47-0, Stevens/Zarelli excused, House vote 91-0, signed into law)
Bill Summary: Rock climbing is added to the list of recreational activities for which a landlord may be immune from civil liability for injury or death caused by the landlord's unintentional acts. The Legislature expresses its intent that the specific inclusion of rock climbing does not imply that other related recreational activities are not also covered by these immunity provisions.

 

[zukkev]

Bump....for those of you that may not have seen this, or sent out your letter, this can go a long way toward changing the way trails can be built!!!:awesomework: So get yours in!

 

[dirtyhall]

Here's what I received back from Senator Hans Dunshee:

Dear Dusti:



I would first like to thank you for taking the time to contact me. I welcome and appreciate your comments. They are very important to me.



Under common law, in additional to intentional acts, landowners may also be liable for unintentionally causing harm through acts of negligence or recklessness. Landowners owe a different set of duties depending on the legal status of the persons on their property ? invitee, licensee, or trespasser. Landowners have the most responsibilities to invitees and the least to trespassers. A key point is that historically people were considered invitees when they entered land for recreational purposes, whether they were invited or not. This meant that land owners who allowed people to use their land recreationally had a responsibility to perform inspections, discover dangerous conditions, and to use ?ordinary care? to keep their land ?reasonably safe.?



The state has had a long history of encouraging access to land for recreational purposes ? in 1967 we instituted the limited recreational liability statute that you reference. The core of that statute is: ?any public or private landowners? who allow members of the public to use them for the purposes of outdoor recreation? without charging a fee? shall not be liable for unintentional injuries to such users.? This statute flipped common law on its head and created very strong protections for landowners when they allowed the public to use their land, free of charge, for recreational purposes.



There are three limited conditions to which liability will attach to the landowner in the case of such a recreational injury.



1) A fee is attached to the usage of the land (although there are certain usage charges in statute that do not incur liability)

2) The injuries are intentionally inflicted

3) The injuries are caused by a known, dangerous artificial AND latent condition



It appears that you are concerned about the third instance in which liability can fall to the landowner. It is important to understand that all four of those conditions must be met, the absence of any one element means that there is no liability. Just as background, latent conditions are those that represent dangerous conditions that are ?not readily apparent to the recreational user? (see Chamberlain v. Department. of Transportation (Wash.App.Div. 1 1995)) and artificial conditions are those that are created by humans as opposed to natural conditions (see Davis v. State of Washington in 2001). Obviously the meanings of all of these provisions have been litigated.



I understand that you are asking for landowners to have no liability for injuries caused by known, dangerous, man-made and not readily apparent conditions. I would think the Legislature is unlikely to completely remove those provisions, but if you have a particular type of condition that you would like to see exempted ? the state has done that in the past.



I co-sponsored HB 1195 in 2003, which expanded recreational immunity to landowners who provided rock climbing opportunities. This was a bi-partisan bill expanding recreational liability immunity and working to expand recreational access. This bill passed out of both the House and Senate and is now current law.



Thank you again for taking the time to write and feel free to contact me with any further questions. I look forward to hearing from you in the future about other issues that concern you.

Sincerely,

Hans



Rep. Hans Dunshee

 

[POWWAG]

This is the only response so far, doesn't look encouraging!

Donald,

Thank you for contacting us regarding laws governing recreational immunity.

It would be very difficult to repeal the language in this law. If it was repealed, it would allow landowners who knew that people were using their property for recreational use, and also knew that they had a known, dangerous, artificial (man-made), latent (not evident) condition on their property and did not post warning signs of such conditions to get off scot free if someone were injured. Again, this law is referring to known dangerous hidden conditions about which known recreationalists are not warned.
There is a distinction between recreationalists using someone

 

[Ricky Bobby]

Here's what I received back from Senator Hans Dunshee:

X2, I got the same letter from Mr. Dunshee.

 

[85b2man]

so what are they saying as long as something is signed difficult, unmarked hasards steep terain were good cant we just do that ?

 

[quartz]

Here is the response I received concerning the immunity law.

Thanks for letting us know your concern with recreational land use.
While some kind of change in the law may be appropriate, in the 2008 session we passed Substitute House Bill 2472. The bill created the Sustainable Recreation Work Group, and the final report from the group is due this December. Part of the charge of the work group is to identify barriers to increased recreation on DNR lands. I believe this report will probably drive what happens next, legislatively, with recreational land use issues, and you may want to check it out, if you aren't already aware of it, on how you may impact the results, at this point, although a number of deadlines have supposedly passed. We will also send on your remarks to Mark Mauren, Asst. Division Manager, Public Recreations Access via a cc of this e mail.

The reports of the Sustainable Recreation Work Group can be followed at this website:
http://www.dnr.wa.gov/RecreationEducation/Topics/RecreationPlanning/Page
s/amp_rec_sustainable_recreation.aspx



I have asked House staff to look at the law, and so far what can be said around the issue is the following from one of those staff:" I have to infer a bit as to the intent of the law; however, it is pretty clear that the law today sets out to provide immunity to those who open their land for others only to have their visitors injure themselves through no fault of the owners. This is akin to providing immunity from negligence. The current law does not provide immunity to landowners who know there is something dangerous on their property and does nothing to warn their visitors. Or in other words, the statue protects against negligence but not gross negligence."

I will be looking to the DNR reports to see where this goes, and what kind of impacts they will be recommending. In the meantime, I'd be happy to meet with you to discuss this further.

One addendum to this information that I just received: This topic will be one of the recommendations of the sustainable Outdoor Recreation Work Group before the legislature this coming session.

Sincerely,

Mike Sells
State Representative

 

[nate8887]

Sounds like you have a real good rep.

 

[quartz]

Another response

Thank you for drawing your concern to my attention.

The state has had a long history of encouraging access to land for recreational purposes - in 1967 we instituted the limited recreational liability statute that you reference. The core of that statute is: "any public or private landowners... who allow members of the public to use them for the purposes of outdoor recreation... without charging a fee... shall not be liable for unintentional injuries to such users." This statute flipped common law on its head and created very strong protections for landowners when they allowed the public to use their land, free of charge, for recreational purposes.

There are three limited conditions to which liability will attach to the landowner in the case of such a recreational injury.

1) A fee is attached to the usage of the land (although there are certain usage charges in statute that do not incur liability)
2) The injuries are intentionally inflicted
3) The injuries are caused by a known, dangerous artificial AND latent condition

In your email you bring up question about the third instance in which liability can fall to the landowner. It is important to understand that all three of those conditions must be met, the absence of any one element means that there is no liability. Just as background, latent conditions are those that represent dangerous conditions that are "not readily apparent to the recreational user" (see Chamberlain v. Department. of Transportation (Wash.App.Div. 1 1995)) and artificial conditions are those that are created by humans as opposed to natural conditions (see Davis v. State of Washington in 2001). Obviously the meanings of all of these provisions have been litigated.

It is highly unlikely that the Legislature would completely remove these provisions; but with that being said, if you have a particular type of condition that you would like to see exempted - the state has done that in the past. Like in 2003 when the Legislature, including myself, unanimously passed HB 1195 which expanded recreational immunity to landowners who provided rock climbing opportunities. This was a bi-partisan bill expanding recreational liability immunity and working to expand recreational access. It is now current law: http://wsldocs/2003-04/Pdf/Bills/Session Law 2003/1195-S.SL.pdf.

My door is always open so if you would like to bring a specific condition to me regarding recreational immunity I would be happy to consider it. The feedback I get from the folks at home help guide my decisions when I am in Olympia.

Sincerely,

John McCoy
Stat Representative, 38th LD

 

[tlcruiser66]

Sent, didn't get the e-mail but it probably got lumped into my spam folder but saw the posting in CC.

Also joined the Facebook group and invited everyone on my list to join too.

 

[fubar73cj5]

I edited it a little, feel free to copy;

SUBJECT: Recreational Immunity Law (RCW 4.24.210)

MESSAGE: Hello State Senator Pam Roach and Representatives Dan Roach and Christopher Hurst, (change to your Reps)

My name is ______________ and I live in your represented area. My ___________ and I live in _________ County and travel all over Washington to enjoy the outdoors, whether that involves our Jeep, motorcycles, or on atv's with our friends. I am writing to you in an effort to bring up an issue with the Recreational Immunity Law. There is a very small phrase with a very large negative impact on our recreational lands that is included in this statute that should be removed. The phrase that needs to be removed is "known dangerous, artificial, latent condition"

In context with the rest of the law, it essentially means if a landowner knowingly leaves something that matches that phrase on their land without warning signs they are potentially responsible for an injury. This also brings up other liability issues. As other states have recognized, those who recreate on public or private lands should be responsible for their own actions. The "gray area" caused by this phrase should be removed so agencies like DNR can continue to provide recreational opportunities for all to enjoy. All states have these types of laws, but Washington state includes that phrase and it intimidates landowners both public and private to the point where they are closing these recreational areas or refuse to improve them so they don't intentionally create a liability.

Not only does this greatly affect lands where we currently recreate, but also access to future areas (both private and public). Please be sure to bring this issue up in the next legislative session. It is time for our society to start taking responsibility for the own actions in all areas of their lives whether it is financial, recreational,or otherwise.

Best regards,

______________

I just go this response;

"Justin,

Thank you for your message, and sorry it took so long to get back to you. Is there some particular incident that brought this up as an issue, or has someone suffered a loss related to this, because I hadn't heard about this in the past? Is there a specific instance that you can show me that would necessitate this change? I am not familiar with this as a problem, and I am interested to know if there is a problem out there that we need to resolve. As a general rule, I believe that a court or a jury would side with the land owner unless they were acting recklessly.

Thanks!

Chris"

I'll be writing back shortly

 

[dirk]

I made some changes to the template & sent the following letter today...

SUBJECT:

Recreational Immunity Law (RCW 4.24.210)


MESSAGE:

State Senator <INSERT NAME OF YOUR SENATOR> and Representatives <INSERT NAME OF 1ST REP> and <INSERT NAME OF 2ND REP>,

My name is <INSERT YOUR NAME> and I live in your represented area. My family and I live in <INSERT YOUR COUNTY> and travel all over Washington State to enjoy the outdoors...our recreational passion involves our highly modified <INSERT TYPE OF RIG YOU WHEEL>, motorcycles, mountain bikes and quads. I am writing to you regarding the Recreational Immunity Law. This law contains a small phrase with a large negative impact on our recreational opportunities.

Please consider removing the phrase "known dangerous, artificial, latent condition" from the law.

In context with the rest of the law, it means a landowner is potentially responsible for an injury, if they knowingly leave something that matches this description on their land without proper warning signs. As other states have recognized, those who recreate on public or private lands should be responsible for their own actions. The ambiguity of this phrase should be removed so agencies like the Washington State Department of Natural Resources can continue to provide recreational opportunities for all to enjoy. All states have these types of laws, but Washington State includes that specific phrase. It intimidates public & private landowners to the point where they are closing these recreational areas, or refuse to increase the trail difficulty, so they don't intentionally create a liability.

Not only does this greatly affect lands where we currently recreate, but it also jeopardizes access to future areas. Please be sure to bring this issue up in the next legislative session. It is time for our society to start taking responsibility for their actions.

Best regards,

<INSERT YOUR NAME>
<INSERT YOUR CITY, STATE>

 

[dirk]

One of our members received the following reply to his letter...

From: [email protected]
To: *******@hotmail.com
Date: Fri, 30 Oct 2009 16:37:50 -0700
Subject: RE: Constituent: Recreational Immunity Law RCW 4.24.210

*****,

Thank you for your message. I appreciate you taking the time to share your comments with me. As I understand it, this issue has a long history. Several folks around the region have been raising concerns about it lately, and I have been having discussions about this with other legislators and our policy staff to think about potential options.

As you know, the statute provides an immunity from damages lawsuits by injured recreational users when the access is provided free of charge. But the there is an exception to the immunity, as noted by you, which derives from various lines of tort cases that have set up the common law on this subject. One of the court decisions construing this statutory standard went against Tacoma Power at one of their projects involving a boating collision with a submerged stump.

Forest landowners, other landowners providing recreational access, and some utilities would like to modify this exception to the immunity, if only slightly to address their particular circumstances. But the trial lawyers vigorously oppose it, arguing that it is actually a very narrow, common sense exception. I'm not aware of the structure in other states but suspect that there are similar exceptions to the recreational use immunity. Our policy staff continues to look into this.

I see both sides of this issue and am looking forward to learning more about it. The "plus" would be some (hard to quantify) marginally greater tendency for landowners to grant access to the public for recreational uses, if this exception to the immunity was not in the statute. The "minus" might be that an injured recreational user is barred for compensation from the landowner due to an injury that under the current law is considered a "known, dangerous, latent, artificial" condition.

Thank you again for your message. This discussion is ongoing. I

 

[Corey Y]

A Senator just called me He said they are on the floor discussing this issue and he wanted to know more about it. I was very surprised! I explained about wanting more challenging trails and releasing the DNR and Forest Service from liability and said the DNR liaison could offer him more information.

 

[dirk]

A Senator just called me He said they are on the floor discussing this issue and he wanted to know more about it. I was very surprised! I explained about wanting more challenging trails and releasing the DNR and Forest Service from liability and said the DNR liaison could offer him more information.

Did you discuss natural vs man-made obstacles? What about public vs private land?

Nice job

 

[Binder]

A Senator just called me He said they are on the floor discussing this issue and he wanted to know more about it. I was very surprised! I explained about wanting more challenging trails and releasing the DNR and Forest Service from liability and said the DNR liaison could offer him more information.

Did you discuss natural vs man-made obstacles? What about public vs private land?

Nice job

You guys do know that's not what this bill is about right?
Here's the current law on the books.
RCW 4.24.210

From here these are the changes they are trying to make...

EFFECT OF CHANGES MADE BY NATURAL RESOURCES, OCEAN &
RECREATION COMMITTEE (Proposed First Substitute): The substitute bill: (1)
removes language allowing landowners to charge for recreational use to offset maintenance
and land management expenses and receive limited-liability protection; and (2) increases the
maximum amount that certain public off-road vehicle facilities may charge while still
receiving limited liability protection from $20 to $50.

These changes were proposed by the department of natural resources ocean and recreation.
The bottom line is they want to charge more money for us to use their land.