March 2012 - Parks & Recreation - 29

LAW RE VIE W

By James C. kozlowski, J.d., Ph.d.

Cliff Collapse
Accidents
Test Recreational Use Statutes

R

ecreatIonaL use statutes (RUS) exist in

L. kraGt Bakker/ shutterstock

most states. With minor jurisdictional variations, most of these statutes are based upon
a model state statute from 1965 which provided that a
landowner who opens his land for public recreational use
free of charge owes no legal duty to guard, warn, or make the
premises reasonably safe for such use.
The landowner, however, will still be liable for willful or wanton misconduct. Unlike mere carelessness,
which typifies ordinary negligence, willful or wanton misconduct is much more egregious misconduct
characterized by a conscious indifference and utter
disregard for the physical wellbeing of others. Originally intended to provide limited immunity for private landowners against recreational injury liability,
with some notable exceptions, courts in many jurisdictions have found the RUS applicable to public entities, including the federal government.
In the Kirwan opinion described below, the Texas state supreme court found no evidence of such
conscious indifference on the part of the public landowner which would have voided limited immunity
available under the RUS. In contrast, in the Berman
opinion described below, the Rhode Island state supreme court found that a " number of serious injuries
flowing from a known risk " were sufficient to establish the statutory exception for a " willful or malicious
failure to guard or warn against a dangerous condition " under the RUS.
Moreover, in Kirwan, the risk of injury associated
with a cliff was considered an open and obvious natural condition. Accordingly, the risk of injury should
have been apparent to the recreational user through
the reasonable use of his senses. Under such circumstances, the recreational user, looking out reasonably
for his own safety, should have been able to avoid a
readily observable dangerous condition.
In contrast, cliff in Berman was characterized as
a " latent dangerous condition " for " unsuspecting
visitors. " In other words, this cliff was actually much
more treacherous than it appeared to be. Under the

circumstances, visitors looking out reasonably for their own safety might not be expected to know and appreciate how ongoing erosion had
made the cliff unstable.
Unlike an open and obvious natural hazard, evidence of a dangerous condition on the land which is
known to those in control of the land, but hidden and
" trap like " to the unsuspecting recreational user is
more likely to indicate the type of conscious indifference necessary to trigger the " willful misconduct "
exception under an otherwise applicable RUS.

Unstable Rocks
In the case of City of Waco v. Kirwan, 298 S.W.3d
618; 2009 Tex. LEXIS 969; 53 Tex. Sup. J. 140 (Tex.
11/20/2009), the Texas state supreme court considered whether " a landowner owes a duty to warn or
protect recreational users against the dangers of naturally occurring conditions on the landowner's property " under the state RUS.
As cited by the state supreme court, the state recreational use statute " expressly provides that the
landowner does not assure that the premises are safe
for recreational purposes. " TEX. CIV. PRAC. & REM.
CODE § 75.002(c)(1). In so doing, the court noted that
the legislative intent of the state recreational use statute is " to encourage government and private parties
to open their land to the public " by " limiting their
potential liability. " Accordingly, when applicable,
the state RUS requires " proof of gross negligence,
malicious intent, or bad faith on the part of the governmental unit " to establish liability for an injured
recreational user of government-owned property.
Further, gross negligence within the context of the

Our state parks
and lands are
covered by
numerous
potentially
dangerous
natural
conditions:
cliﬀs; caves;
waterfalls;
swamps and
other wetlands;
mountains and
canyons; surf;
and various
animals and
creatures.
-Texas Supreme Court

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March 2012 - Parks & Recreation

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