What Protects Waterfront Landowners from Personal Injury Lawsuits

As weather in Michigan becomes warmer signaling the approach of summer, waterfront property owners begin thinking about boats, docks, jet skis, etc. Every summer, unfortunate accidents occur that are related to water and recreational activities: swimmers make a wrong judgment regarding the depth of the water and dive into shallow water resulting in severe neck injuries, boaters and those driving personal watercraft can be blinded by the sun and fail to see someone skiing or tubing behind a boat resulting in a catastrophic accident, a "slip and fall" during a game of volleyball played on the beach or in shallow water can cause unexpected and long-lasting injuries. In 1987 the Michigan Supreme Court consolidated two cases, one involving an individual who was injured while slipping on logs that property owners installed at the edge of a lake to prevent erosion. The resulting neck injury caused paralysis from the shoulders down. Three neighborhood associations and individual subdivision lot owners were sued for damages. The defendants included over 200 individuals. The other case involved a child who drowned while she and her mother were visiting relatives. The child died in the shallow part of a pond owned by her aunt and uncle. The Supreme Court determined that the cases could proceed to trial despite the protections afforded property owners in the Michigan Recreational Land Use Act (RUA). The Court determined that the RUA was only applicable to large, undeveloped tracts of land. Summer DockThe RUA, Michigan Compiled Law 324.73301(1) states: "[A] cause of action shall not arise for injuries to a person who is on the land of another without paying the owner . . . for the purpose of fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use . . . unless the injuries were caused by gross negligence [i.e., intentional misconduct] or willful and wanton misconduct of the owner." In 2004, the Michigan Supreme Court reversed itself and determined that the RUA will, in fact, operate pursuant to its plain language. Therefore, unless a property owner acts with the intent to harm another, the RUA can protect a property owner from liability for injuries sustained by a third party who is performing recreational activities on the land irrespective of whether the land is undeveloped, developed, vacant, occupied, urban, suburban, rural, subdivided or unsubdivided. The 2004 case involved a passenger on an ATV who injured her back after being bounced off the ATV as a result of the driver driving over an uneven area of the lawn. The Court determined that the RUA is limited in application to certain activities, i.e. outdoor recreational activities, but it is not limited in application to particular types of land. "Therefore, an owner is not liable to a nonpaying outdoor recreational user of his land, unless the user's injuries are caused by the owner's gross negligence or willful and wanton misconduct." Neal v. Wilkes, 470 Mich 661, 670; 658 N.W.2d 648, 653 (Jul 20 2004). Thus, pursuant to the RUA, a landowner cannot be held liable for injuries suffered by a person while using the landowner's land for an outdoor recreational activity, provided that

  • (1) the person has not paid the landowner to use the land, and
  • (2) that the injuries were not caused by the landowner's gross negligence or willful and wanton misconduct.

Although property owners may breathe a little easier, the RUA does not protect a property owner from a lawsuit. It does, however, provide the property owner a defense if the facts of the case satisfy the provisions of the statute. Dan A. Penning