More About Recreational Activities

Whether an injury from a recreational activity has resulted from the negligence of another party depends on the specific facts of any given case, but general considerations may provide guidance in evaluating a possible claim.   The following general areas of law most commonly come into play:

• Landowner's Duty
• Waivers and Releases
• Statutory Limitations
• Product Liability

Landowners Duty

Was the accident on private land?
If so, most states have a premise liability statute which provides the duty of care owed by the landowner. In Colorado, this statute is the Colorado Premise Liability statute, C.R.S. §13-21-115. The duty of the landowner depends upon the status of the injured party - whether the person is a trespasser, "a person who enters unto the land of another without the landowner's consent; a licensee, a person who enters unto the land of another with the landowners consent but for the person's own convenience or purposes, or an invitee, a person who enters onto land of another to transact business in which both the landowner and the person have an interest. A trespasser may only recover for damages willfully or deliberately caused by the landowner. A licensee may recover for injuries caused by the landowner's unreasonable failure to warn of unusual dangers not created by the landowner of which the landowner actually knew. However, an invitee may recover only for injuries caused by the landowner's unreasonable failure to exercise reasonable care to protect against dangers of which he actually knew or should have known. Where invitees are involved, no concern is given whether the danger that caused the accident is ordinarily present on the property of the type involved.
Many states (including most of the states here in the Rocky Mountain west, which have large, influential, outdoor recreation industries), have "Recreational Use" statutes on the books, which shield private rural landowners from most tort liability for damages suffered by those who come onto their land, free of charge, to pursue recreational activities.

The effects of a Recreational Use statute can be wide ranging. Here in Colorado, for example, the Colorado Recreational Use Statute (C.R.S. § 33-41-103) provides that an owner of land who either directly or indirectly invites or permits, without charge, any person to use such property for recreational purposes does not thereby:

a) Extend any assurance that the premises are safe for any purpose;

b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed;

c) Assume responsibility or incur liability for any injury to person or property or for the death of any person caused by an act or omission of such person.

The statute does, however, go on to identify four circumstances in which a landowner's liability is not limited. A landowner is not protected from liability when it (a) "willfully or maliciously fails to guard or warn against a known dangerous condition, use, structure or activity likely to cause harm;" (b) "charges" the person for the recreational use of the land; (c) maintains an "attractive nuisance;" or (d) when injuries are received "on land incidental to the use of land on which an commercial or business enterprise of any description is being carried on." C.R.S. § 33-41-104.

Was the accident on public land?
The Federal Torts Claim Act, 28 U.S.C. §2671-2680 (FTCA), provides that the federal government waives its traditional claim of immunity, when its employees are negligent, and when a private person would be liable under the same circumstances, according to the law of the place where the negligence occurred.

However, this waiver is limited by the discretionary function exception. It provides that no claim may be brought against the United States when the claim is based upon the exercise of a discretionary function or duty. In a winter accident in Yellowstone National Park, a child fell 400 feet to his death. The parents filed a claim for wrongful death, asserting that the park ranger was negligent for failing to close the trail on which the child was snowmobiling. The Court of Appeals for the 9th Circuit held that whether to mark or close a trail was a discretionary function, and therefore the National Park Service was immune from liability. See Childers v. United States, 40 F.3d 973 (9th Cir. 1994).

The Government may also argue that it enjoys the protection of the applicable Recreational Use statute. The Tenth Circuit, the federal court jurisdiction for Colorado, has consistently held that the United States is entitled to the protection of state recreational use statutes, including the Colorado Recreational Use Statute. Their most recent pronouncement on the issue was in Otteson v. United States, 622 F.2d 516 (10th Cir.1980).

At least six other federal courts have reached similar conclusions, interpreting recreational use statutes from Tennessee, Cagle v. United States, 937 F.2d 1073 (6th Cir. 1991); Oregon, O'Neal v. United States, 814 F.2d 1285 (9th Cir.1987); Hawaii, Proud v. United States, 723 F.2d 705 (9th Cir.), cert. denied, 467 U.S. 1252 (1984); Arkansas, Mandel v. United States, 719 F.2d 963 (8th Cir.1983); Mississippi, Dorman v. United States, 812 F.Supp. 685 (S.D.Miss.685); and California, Hannon v. United States, 801 F.Supp. 323 (E.D. Cal.1992).

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Waivers and Releases

Waivers and releases of liability, executed by parents, on behalf of their children, have generally been disfavored by Colorado courts.  However, during the 2003 legislative session, Colorado passed a law which overrules the Supreme Court holding of Cooper v. Aspen, and allows a parent to release or waive on behalf of his or her child, the child's prospective claim for negligence against persons or entities involved in recreational, educational, and other activities.
 
When presented with a release, read it carefully before you sign it. The release should be plainly worded, should include the word negligence, and must contemplate the conduct which forms the underlying basis of the claim asserted. The release should disclaim acts of negligence, only, and then, only with respect to the inherent dangers of the sport. The release should not relieve an organization from neglect in connection with the basic care for the child, e.g., allowing strangers to pick up children, rather than the parents, failure to provide a safe pick up or drop off area, deliberate abuse by an employee, etc.

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Statutory Limitations

Recreational accidents resulting in personal injury are provided a two-year limitations period in Colorado. An injured party must file suit against a private party within two years of the accident, otherwise any tort claim is forever forfeited.  If the suit is against a government entity, a much shorter notice period may be controlling.

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Product Liability

Many recreational accidents involve failure of equipment such as poor riding tack, failure of bicycle brakes, and lack of lights on snowmobiles. If equipment is improperly maintained, then the provider of the equipment may have acted negligently. But if the equipment is defective in its design, then the manufacturer may be liable. The circumstances of any accident involving failure of the equipment should be reviewed for a possible defective product claim.

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