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LAW REVIEW continued from page 35

for the Vehicle Entry Pass; the Forest Service did not collect such fees from the
concessionaire.
The Forest Service argued that Chapman's claim was barred by the Indiana
Recreational Use Statute ( " RUS " ), Ind.
Code § 14-22-10-2. As noted by the court,
the RUS would not protect the Forest Service from liability if Chapman did pay a
fee for permission to enter the recreation
area.
As cited by the federal court, the Indiana RUS defined " monetary consideration " as " a fee or other charge for
permission to go upon a tract of land. "
Ind. Code § 14-22-10-2(b).
The Forest Service contended that
Chapman " did not pay for permission to
enter and use the Recreation Area, but
only for the convenience of entering by
car and parking. " In support of its argument, the Forest Service points out the following facts:
(1) payment of an entrance fee was not
required for general entry to the Recreation Area in August 2003, and
walkers and bicyclists entered without
payment of any fee; (2) the fee for Ms.
Chapman's annual pass was charged
on a per-vehicle, not a per-passenger,
basis; and (3) Ms. Chapman purchased
the annual pass from a third-party concessionaire, who retained that parking
fee and never passed it along to the
Forest Service.

In response, Chapman claimed " all
visitors who wished to enter the Recreation Area by car were required to pay
an entrance fee " even if " walkers and bicyclists could enter the Recreation Area
for free. " Accordingly, Chapman contended that " her purchase of the Vehicle
Entry Pass should be viewed not merely
as a parking fee, but as a fee required to
obtain permission to enter the Recreation
Area for all motorist visitors. "
The federal district court agreed
with Chapman. In the opinion of the
court, there was " no evidence to suggest that some motorist visitors could enter the park without payment of a fee. "
On the contrary, according to the court,

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AUGUST 2011

" it appears that payment of a fee was unavoidable for those who wished to access
the Recreation Area by car. "
As a result, the federal district court
found Chapman had alleged sufficient
facts that her Vehicle Entry Pass might
constitute " payment of monetary consideration " under the fee exception to the
RUS, precluding summary judgment for
the Forest Service on the basis of the RUS.

West Virginia Parking Fee
In the case of Winebrenner v. United States,
389 F. Supp. 2d 716 (S.D. W.Va. 9/28/2005),
plaintiff was injured while swimming in
Lake Sherwood at Monongahela National
Forest. Upon arriving at the park, plaintiff was charged a $3.00 fee for the car he
was driving.
As cited by the court, the West Virginia RUS provided limited immunity to
persons who open their land for recreational purposes. W. Va. Code Ann. § 1925-4. The statute defined charge as " the
amount of money asked in return for an
invitation to enter or go upon the land. "
W. Va. Code Ann. § 19-25-5.
It was undisputed that the plaintiff and
his family paid a $3.00 fee that was assessed upon each car that entered the
park. The plaintiff argued that this fee
equates to a " charge " under West Virginia's RUS. In response, the defendant
United States contended that the fee was
merely a parking charge and not the
type of entrance fee contemplated by the
statute.
The federal district court agreed with
the government, finding the $3.00 fee was
a parking fee and not a general entrance
fee. In so doing, the court noted deposition testimony that the $3.00 fee was levied per car and not per passenger in the
car. In addition, the court cited testimony
that an individual who entered the park
on foot or on bicycle did not pay the $3.00
fee. As a result, the court found those who
enter on foot or bicycle are entitled to the
same use of the park as those who arrive
by car and pay the $3.00 parking fee.
Plaintiff Winebrenner contended that
the parking fee was a de facto entrance

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fee because of the distance of the park
from a main road. The court rejected
plaintiff's argument because it " does not
account for the fact that the fee is only
charged per car and not per individual in the car. " As a result, the court concluded that " a fee charged per car and
not per passenger and that is not charged
to those arriving on foot or by bicycle is
a parking fee and not a general entrance
fee. "
Having determined that the $3.00 fee
was purely a parking fee and not a general entrance fee, the court then considered
whether this fee " equates to a 'charge' under the RUS. " In the opinion of the court,
the immunity of the state recreational use
statute is not lost under the fee exception
" when a fee is levied per vehicle without
regard for the number of people inside
and no fee is charged to those entering
by other means mere payment of a pervehicle fee to enter and park. "
In this particular instance, the court
noted that the $3.00 fee " was charged per
vehicle irrespective of the number of passengers and it was the policy of the park
that those arriving by means other than
a motorized vehicle were not charged
any fee. " Accordingly, the federal district
court concluded that " the charge exception to the liability immunity provision of
West Virginia's RUS does not apply in this
case. "

Idaho Vehicle Entrance Fee
In the case of Allen v. State of Idaho, 136
Idaho 487; 36 P.3d 1275 (12/3/2001), Jimmie Allen and his father, Richard Allen,
went to Winchester Lake State Park in
Lewis County to fish. They paid a fee of
$2.00 at the entrance to the Park to enter
the Park in their vehicle. While fishing,
Jimmie Allen fell into Winchester Lake
and impaled his left thigh on a steel fence
post located under the water.
Jimmie and his parents filed suit
against the State, alleging both a failure
to make the premises safe and a failure
to warn of an unreasonably dangerous
condition. In response to the complaint,
the State filed a motion to dismiss the

August 2011 - Parks & Recreation

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