Q. Summertime in Kentucky! There’s no better place — and no better time — to get out and play ball, go for a hike or spend time in, or on, the water. Our natural resources are our advantage, and our county has spent money to entice folks to spend their recreational tourism dollars here. As county attorney, I know we have insurance to cover some of our recreational activities, but if something were to happen, what about defenses specific to things like hiking, playing baseball or swimming?
A. What a wonderful leading question! Kentucky in the summer is amazing with so many things to do. There is excellent hiking all across our state. The lakes, rivers and streams allow for a variety of water activities, from bank fishing to swimming and boating. Drive by a county park any day of the week, and you’ll find a ballgame being played. Recreational tourism is great for Kentucky. However, greater participation increases the likelihood of an accident or injury. But if that accident or injury leads to a lawsuit, recreational immunity may provide an appropriate defense. The Kentucky General Assembly enacted KRS§411.190, the recreational immunity statute, “…to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons…” enjoying their property. Land owners include private property owners and local governments.
So how does recreational immunity work? If the land owner allows individuals to use their property for recreation, land owners generally:
• are not required to warn of dangerous conditions;
• do not owe a “duty of care” to the individual; and
• do not have liability for injury to the person or damage to their property.
The recreational immunity defense is not applicable if you charge an entry fee or if you willfully or maliciously fail “… to guard or warn against a dangerous condition, use, structure or activity.” Size constraints prohibit a complete overview, but the following key questions may assist your understanding of this valuable defense:
What is an entry fee?
It’s a fee to use the property. But dig deeper and analyze if the fee is actually for entry or for some other purpose.
In Midwestern Inc. v. N. Ky. Cmty. Ctr., 736 S.W.2d 348, 1987 Ky. Ct. App., a 17-year-old dove into a pool and was paralyzed. The pool had free admittance for Covington youth certain hours each week. At other times, the youth had to pay an entry fee. As this teenager had gotten into the pool for free the day he was injured, the Kentucky Court of Appeals decided:
As the element of payment of an admission fee is missing and there are no allegations of conduct rising to the level of willful negligence, the city and center are entitled to the immunity granted by KRS 411.190 and the appellant’s claim against them must necessarily fail.
Therefore, charging an admission fee some of the time, does not taint those times when entry is free.
In City of Louisville v. Silcox, 977 S.W.2d 254, 1998 Ky. Ct. App., the Kentucky Court of Appeals deter- mined that parking fees are not necessarily entry fees either. In this case, an individual jumped into a muddy creek from a 5-foot-high embankment, landed on a log and injured his leg. The court stated:
For the charge to constitute an admission fee it must be established that it is imposed in return for recreational use of the land.As the fee was paid to park in that particular lot only and was clearly not paid in exchange for permission to enter the park and enjoy its facilities, the city was immune from liability under KRS 411.190.
What is a “…willful or malicious failure to guard or warn … against a hazard”? And does the recreational user bear any responsibility?
A willful failure to guard against a hazard occurs when the landowner knows there is a “hidden” dangerous hazard and doesn’t warn the recreation- al user. For example, if a trail goes by what appears to be a structurally sound cabin, the landowner could lose the recreational immunity defense if the landowner knew the cabin was unsafe and failed to issue a warning. In this circumstance, a sign alerting the hiker as to the dangerous condition could alleviate liability.
Common sense and the law don’t always dovetail, but in Blust v. Berea Coll., 431 F. Supp. 2d 703, 2006 E.D. Ky., the U.S. District Court agreed that a recreational user bore some responsibility for her death as the dangers inherent to hiking near a cliff were open and obvious to anyone exercising ordinary care. The court stated:
A landowner has no duty to warn or otherwise make land safe where a dangerous condition is so open and obvious that the victim could have dis- covered it with the exercise of ordinary care.
As a matter of law, the danger of slipping and falling from the edge of such a cliff is open and obvious to one exercising ordinary care. The defendant had no duty to warn of such a danger, nor did it have a duty to make the property absolutely safe.
How do you allow individuals to use your property?
In some instances, the answer is obvious, such as someone using a tennis court in a county park during operating hours. However, in other instances, it may not be so obvious. In Coursey v. Westvaco Corp., 790 S.W.2d 229, 1990 (Ky. 1990, a teenager was paralyzed after diving into a water-filled sandpit on Westvaco’s property. The Kentucky Supreme Court provided this standard:
To require a formal dedication of the land would defeat the purpose of the Act by reducing the number of owners who would dedicate their property. In lieu of a formal dedication, we hold
that a landowner must at a minimum show he knew and condoned the public making use of his land for a recreational purpose, and by the landowner’s words, actions or lack of action, it must be able to be reasonably inferred that the landowner intended to put his land to such use. Since Westvaco knew people were swimming in their pits, and didn’t take action to prohibit it, like
hiring guards or calling law enforcement, Westvaco was able to use the defense.
What have you learned?
The recreational immunity defense was created to entice Kentucky landowners to open up their proper- ties to recreational users. Generally, for the defense to be available, usage should be free, warn of hidden hazards that someone exercising “reasonable care” would not expect with property access permitted. To avail your county of this legal defense, talk to your county attorney and let him or her help you determine whether your county is in compliance with KRS 411.190 requirements. And don’t hesitate to call KACo’s legal team. We’d be happy to help.
Call 800-264-5226 or email me (rich.ornstein@kaco.org) if you have questions regarding this or any other matter. And if you have suggestions for other items you’d like for me to cover in County Line, let me know.
Legally Yours,
Rich
Published in County Line Magazine – July/August 2021
