BILL NUMBER:S289

TITLE OF BILL:
An act
to amend the general obligations law, in relation to the liability of
landowners who permit recreational uses

PURPOSE:
This bill would enhance the availability of recreational
activities on undeveloped lands by clarifying the provisions of the
General Obligations Law (GOL) relating to landowner liability for
providing public access for recreational activities.

SUMMARY OF SPECIFIC PROVISIONS:
Section 1 of the bill would amend GOL
§9-103 to provide that owners, lessees and occupants of premises owe
no duty of care: (i) to keep their premises safe for passage over by
persons engaging in specific recreational activities; and (ii) to
persons engaging in any recreational use on the premises. Also, the
bill would provide that persons, organizations and entities who
maintain recreational trails and other recreational facilities owe no
duty of care to members of the public who use such trails and
facilities.

Section 2 provides that the bill would take effect immediately.

              

EXISTING LAW:
GOL §9-103 provides that owners, lessees and occupants
of premises owe no duty of care to keep their premises safe for entry
for persons engaging in specific recreational activities, including
hunting, fishing, organized gleaning, canoeing, boating, trapping,
hiking, cross-country skiing, tobogganing, sledding, speleological
activities, horseback riding, motorized vehicle operation for
recreational purposes, snowmobile operation, cutting or gathering of
wood for noncommercial purposes or the training of dogs.

JUSTIFICATION:
Since 85 percent of New York State is privately-owned,
many people rely on private landowners for access to the State's varied
outdoor recreational opportunities. Landowners would be more
receptive to opening their lands for public recreational use if they
believed that they would not be subject to liability for doing so.
Recreational activities can pose a risk to the participant either
because of the very nature of the activity or because of the
character of the natural surroundings in which the activity takes
place. Accordingly, individuals have been injured due to their
failure to recognize the inherent risks associated with such
activities. Certain activities have been foreclosed to the public
because of the fear of liability or the cost of insurance to be borne
by the landowner in order to mitigate such liability. In order to
promote the availability of recreational opportunities, the liability
of landowners is limited in GOL § 9-103.

GOL §9-103, commonly referred to as the Recreational Use Statute,
affords landowners immunity from liability based on a failure to keep
premises safe for entry and use by others for specific recreational


activities, including:
hunting, fishing, organized gleaning, canoeing, boating, trapping,
hiking, cross-country skiing, tobogganing, sledding, speleological
activities,
horseback riding, motorized vehicle operation for recreational
purposes, snowmobile operation, cutting or gathering of wood for
noncommercial purposes or the training of dogs. This statute is a
complete affirmative defense to claims of ordinary negligence brought
against a landowner by someone engaged in one of the listed
activities. However, one of the concerns for landowners is that this
list does not encompass all possible recreational activities for
which a landowner may make their land available to the public, and
therefore raises the question of whether the landowner is immune from
liability for injury upon a person engaging in a recreational
activity not expressly identified in the statute. For example,
because hiking is a covered activity but walking is not, in order to
determine the applicability of the statute, the courts have attempted
to distinguish between two activities that are essentially the same.
This bill would address this incongruity by including all
recreational activities in GOL §9-103.

In addition, this bill would clarify that property owners would be
protected if they allow individuals to pass over their land in order
to participate in a recreational activity. For instance, as the
statute currently states, a court may find it does not have
sufficient statutory guidance to determine whether traversing
properly in order to engage in hunting or fishing activities, which
clearly fall under the protections afforded by GOL §9-103, is
afforded the same protection by the statute. This bill, by
specifically providing protection to landowners who allow persons to
traverse their property, would allow hunters and anglers access to
public or private lands where angling and/or hunting is allowed, and
would increase angling and hunting opportunities on parcels of land
that are currently landlocked by surrounding properties where hunting
and angling may not be available to the public.

Finally, this bill would clarify that organizations that maintain or
develop trails and other recreational facilities are covered as
occupants of the land, even though they may not have an ownership
interest or exclusive license to operate the land or have any authority
to exclude use of the land by others. These groups, however, have
permission of the landowner to maintain the trails or other
recreational facility. Courts have held that if an entity had an
authorized presence on the property, it is deemed an occupant of the
property within the meaning of the Recreational Use Statute. See:
ALBRIGHT V. METZ, SS N.Y.2d 656 (1996) and WELLER V. COLLEGES OF
SENECAS, 261 A.D.2d 852 (4th Dept. 1999). This bill is intended to
prevent claims of negligent maintenance made against recreational
groups who develop and maintain recreational trails for use by the
broader public. Without the involvement of these volunteer
not-for-profit recreational groups, the quantity and quality of
recreational trails and recreational facilities open to the public
would be compromised. It is important that these groups should not be
exposed to claims for negligent maintenance in order to ensure the
continued availability of recreational trails and facilities.


This bill, by expanding and clarifying liability protections in GOL
§9-103, will limit the number of lawsuits initiated against
landowners who open their lands to the public and against
recreational groups who develop and maintain trails and facilities
for public use. In turn, such protection will result in additional
opportunities for recreational pursuits on private lands, including
activities currently not enumerated in statute, as well as enumerated
activities such as fishing, hunting and trapping.

PRIOR LEGISLATIVE HISTORY:
S.8188 of 2006    Passed Senate
S.2761 of 2007/08 Referred to Judiciary
S.837  of 2009/10 Referred to Judiciary
S.2647 of 2011/12 Referred to Judiciary

FISCAL IMPLICATIONS:
None.

EFFECTIVE DATE:
This act shall take effect immediately.