As you plan this summer’s family vacation or trip, beware of the fact that most publicly-owned land, parks, attractions and recreation facilities are exempt from typical premises liability laws, providing a basis for injured persons to pursue damage claims against negligent property owners. This concept is commonly known as “governmental immunity.” Now I am not suggesting that you pass on taking in the spectacular sights and experiences at Yellowstone National Park or the Grand Canyon based on the fact that, in the unlikely event that you are injured there, you might not be able to possibly pursue a claim for damages. We really can’t live our lives that way. However, common sense dictates that we know the various risks involved from the situations that we put ourselves and our family members in on any special trip to unfamiliar areas.
From a public policy standpoint, premises liability laws can be very good for our society (when they aren’t abused) in that liability exposure presumably forces property owners to take reasonable steps to make sure that that conditions on their property are safe for people visiting or otherwise using the property. Whether we think about it or not, most of us have a sense of reasonable expectation about our environment and what threats we may or may not encounter on a daily basis. For example, we don’t expect that in waiting for an elevator, when the doors open a thousand-pound tiger will jump out and attack us. A ridiculous example, but I think you get the point.
Government Immunity – General Rule
Typically, the government statutory immunity stops short of protecting the government as a potential defendant from liability for greater degrees of wrongdoing, such as acts or omissions that can be characterized as willful, malicious or grossly negligent. Originally, the perceived need for immunity arose because of the impracticability of keeping large tracts of mostly undeveloped land safe for public use, but the concept over the years has evolved so that it need not necessarily involve vast expanses of wilderness. It can now apply to campgrounds, golf courses, beaches, and parks and recreation facilities owned and/or operated by local, state or the federal government.
Conditions for recreational-use immunity vary somewhat with a particular state’s statute requiring case-by-case rulings, depending on the facts before a court and the wording of each state’s law. In keeping with a commonly recognized rule of statutory construction, because recreational-use immunity statutes limit common-law liability (liability decided by courts before the law was enacted) that predates such laws, a court must strictly construe language in the statutes in order to avoid any over-broad statutory interpretation that would give unintended immunity and take away a right of action for injured persons.
The Unlucky Golfer
When a golfer at a city-owned golf course slipped and fell on a walkway leading to a tee box, he claimed that the walkway was dangerously steep and narrow, causing his injuries. The municipality defended on the basis of a state recreational-use immunity law. That law required that in order for the state to be immune or protected from liability, an individual must be injured on a premises that was primarily for a recreational use and, secondly, that the injured individual was present on the premises as a “recreational user.”
The court found that the golf course was sufficiently similar to “park lands” to be included in the definition of “premises” under the recreational-use immunity statute even though there was no express mention of golf courses legislature in that law. The golf course fit within the common definition of a “park,” as it was a parcel of property kept for recreational use that was designated and maintained for the primary purpose of allowing users to engage in recreational activity. Not only that, but the statute’s list of types of land uses constituting covered “premises” included a catch-all reference to “any other similar lands injuries occurring thereon.”
The “For-Profit” Exception to Government Immunity
There are various cases and state law statutes with respect to publically owned lands and/or controlled areas that indicate that a state, federal government or municipality may not be exempt from premises liability if the particular business was used for a “business purpose” and produced a “profit” which was generating more money or revenue than required to simply maintain the operation of the premises. In other words, there are certain laws that indicate that a governmental entity should not be shielded from liability if it is operating a business for profit like anyone else.
Although there are these types of exceptions in many states, the ability for an injured person to succeed in many instances is severely limited by the narrowness of the rules interpreting whether a government is deemed to be immune from liability. The old phrase “It’s tough to fight city hall” is particularly true when trying to find an exception to a government immunity statute, especially with respect to premise liability and injuries occurring on publically owned property.
What’s the Point?
The point of my commentary and presentation of the aforementioned information is to simply raise an issue that we are creatures of habit, and oftentimes our defense mechanisms or our ability to foresee dangerous circumstances is dulled by our day-to-day routines and activities in relatively safe places. The fact that I am not a plaintiff lawyer and do not practice personal injury law hopefully gives me some credibility with respect to simply raising the point that when we travel with our family and our children as our precious cargo to new and unique places, we should be aware generally of the types of areas that we are traveling to and what standards may or may not be in place, as the case may be, with respect to making various places safe for our visits.
As a result, I hope everyone has great vacations this summer and experience all of the things that are great about our various states and country. I also wish you all a safe return home.