Summer brings many inquiries from people who want to use farm lands for recreational activities such as fishing, swimming, hiking and camping. Legal liability for injuries is a common concern of landowners faced with these types of recreation requests. To encourage private landowners to open their lands to recreational activities, however, Ohio legislators enacted the Recreational User Statute many years ago. The law limits recreational liability in certain circumstances. Farm owners who allow recreational uses of their property will benefit from understanding how to utilize the law’s liability protections.
What the Law Says
The Recreational User Statute states that an owner, lessee or occupant of nonresidential premises does not “owe a duty to a recreational user to keep the premises safe; extend any assurance to a recreational user, through the act of giving permission, that the premises are safe, or assume responsibility or liability for any injury to a person or property caused by any act of a recreational user.” Ohio Revised Code 1533.181.
How the Law Works
By stating that an owner assumes no responsibility and does not implicitly promise or have a legal duty to keep the property safe for recreational users, the statute gives landowners a legal defense against a recreational liability lawsuit. If a landowner successfully proves that the defense applies to a situation, the landowner is immune to the claims in a lawsuit. The Recreational User Statute’s legal defense applies to a situation if:
• A claim is against an owner, lessee or occupant of nonresidential premises .
• Note that the law protects lessees and occupants as well as the actual landowner. A farmland tenant, for example, receives the law’s liability protection.
• The law only applies to “nonresidential premises,” which includes privately owned or leased lands, ways and waters, and nonresidential buildings and structures. If the alleged harm occurs inside or around a residence, the law is inapplicable. At least one court has determined that a backyard swimming pool is residential, and does not fit within the statute’s definition of nonresidential premises.
• A claim is based on harm caused to or by a recreational user, which is a person who has permission to engage in a recreational activity and does not pay for the right to do so. This definition of a “recreational user” includes several important provisions:
• The person has permission to enter the premises. The owner, lessee or tenant must grant the person permission to be on the property. At least one Ohio appellate court has stated that “permission” does not need to be expressly stated, and can include acquiescence to a recreational activity that didn’t have prior verbal permission. In that case, the court determined that a landowner who stood by and allowed snowmobilers to use his property had granted permission for the recreational use.
• Recreational activities mentioned in the law include hunting, fishing, trapping, camping, hiking, swimming, operating a snowmobile, all-purpose vehicle, or four-wheel drive motor vehicle, or engaging in “other recreational pursuits.” Courts have stated that “other recreational pursuits” can include horseback riding, watching others swim, motorcycle riding, swinging, merry-go-round rides, watching others play baseball, and playing softball.
• The law does not apply if the owner charges a fee or requires a benefit in exchange for the right to use the property. There are two exceptions to this rule: a lease fee paid to the owner of privately owned lands and a fee paid to the state or its agencies. For example, a landowner operating a private fee-based campground business does not receive the liability protection, but a landowner leasing land for hunting or fishing rights does have the statute’s protection.
Ensuring the Law’s Protections
Property owners who allow persons to use their land for recreational activities can follow several guidelines to ensure that the Recreational User Statute will provide liability protection if there is an injury on the property:
• Give permission to the user . Expressly stated permission is preferred, since it is more easily proven. If possible, give written permission, document verbal permission in writing or have a witness present.
• Don’t charge a fee or accept a payment or benefit. With the exception of a leasing situation, don’t require a payment or accept a benefit in exchange for the recreational activity.
• Limit the recreational uses to nonresidential premises. Activities in or immediately around a residence are not covered by the statute.
• Respond to a lawsuit. The Recreational User Statute provides a defense to a liability claim, but the landowner must formally raise and prove the defense in court. Don’t ignore a legal complaint and assume that the statute applies. Take the complaint to an attorney so that he or she can file the appropriate paperwork to assert the Recreational User Statute defense.