The Defense of Immunity for Public Entities in Lawsuits Arising Out of Recreation

Land Manager's Mountain Bike Management Toolkit

By: Eric Ryan Potyondy[i]

In America's modern litigious society, fear of lawsuits is paralyzing. Frivolous lawsuits filed by unscrupulous lawyers have not only abused a system meant to compensate legitimately injured persons, but has also threatened the future of public goods and access to public lands. Public land managers often feel particularly vulnerable to personal injury lawsuits. As caretakers of public lands, they have less ability than a private individual to fully control the lands, and limit their liability. Further, they may be targeted for suit because of the "deep pockets" of government. Consequently, some public land managers have decided to limit access to perceived high-risk groups such as mountain bikers to lessen the threat of litigation. However, several legal defenses are available that can minimize litigation costs, allowing the disease to be cured without killing the patient.

This article discusses public land manager liability arising out of recreation with a focus on mountain biking. This article focuses on personal injury ("tort") claims brought against the land managing agency and the immunity defenses available to government actors. This article aims to introduce the legal issues involved, not to be a definitive source of information. Please note the disclaimer at the end of the article.

This article will begin by introducing negligence and discussing the elements of a claim. Second, it will introduce the doctrine of sovereign immunity. Third, it will discuss the liability of federal land managers, focusing on using Recreational Use Statutes ("RUS") as a defense. Fourth, it will discuss the liability of state-owned land managers and agencies, focusing on the defenses of common law immunity, Tort Claims Acts ("TCAs") and RUS. Finally, the article will conclude with some general advice and resources.

NEGLIGENCE CLAIMS

Personal injury lawsuits ("torts") are based on negligence or fault, with a few exceptions not applicable here.[ii] A plaintiff must demonstrate the four basic elements of negligence to establish a prima facie case, or a case with sufficient evidence for ruling in favor of the plaintiff.

The first element of negligence is duty of care. The plaintiff must establish that the defendant owed some duty of care to the allegedly injured plaintiff. The plaintiff must establish the level of care the defendant owed the plaintiff. The second element is the standard of care. The law recognizes two standards or care: ordinary care and willful or wanton disregard. "Ordinary care" is the standard of care that a reasonable person in a similar situation would use. The defendant is liable and guilty of "ordinary negligence," if she failed to use the care a reasonable person would have. "Willful or wanton disregard" is a lower standard of care, meaning that the defendant owes less care to the plaintiff. The defendant is only liable and guilty of "willful or wanton negligence" if the injurious action or non-action was "willful or wanton." The third element is causation. The plaintiff must show that the defendant's negligence was the proximate, or "but for," cause of the injury. That is, the injury would not have occurred "but for" the negligence of the defendant. The fourth element is injury. The plaintiff must demonstrate an actual injury from the alleged negligence.

The defendant pubic land manager or government agency has two main options in defense: attack the negligence claim or argue immunity.

First, the defendant can contest the negligence claim by attacking the elements of the claim. For example, the defendant can claim that no duty of care was owed; the defendant met the standard or care; the defendant was not the proximate cause; and / or there was no injury. The defendant may also argue that the plaintiff assumed the risk of an inherently dangerous activity. These claims are often specified by statute and case law.[iii] The problem with this defense is that it is fact-heavy and allows the lawsuit to continue. Proving (and disproving) the elements of negligence require factual research and, oftentimes, experts. Further, all this takes time as legal bills and the pressure to settle mount, regardless of culpability mount.

Alternatively, the defendant can argue immunity from suit. This defense will be discussed in the rest of this article. The benefits of this defense are that it is often less fact-based than attacking the particular claims of negligence, and can end a lawsuit before it has begun.

SOVEREIGN IMMUNITY

Sovereign immunity from tort ("sovereign immunity") allows the government to decide the extent of its liability in tort claims brought against it. The doctrine of sovereign immunity originated in England from the adage "the king [or sovereign] can do no wrong."[iv] Aside from reinforcing the idea of an infallible monarch, it meant that the government was immune from lawsuit for its actions. The original thirteen colonies inherited this doctrine because they inherited most of their common law (judge-made case law that acts as a default when no statute is present) from Great Britain.

Sovereign immunity survived in American common law relatively unchanged until the mid-twentieth century, despite differences in American and British legal systems, (i.e. a written constitution.) The justifications for sovereign immunity in the United States are that legal remedies against the government are illogical and counterintuitive, the federal and state governments need latitude to act for the common good, and lawsuits are a drain on the treasury, especially for local governments with smaller treasuries.[v]

Tort claims or government immunity acts now generally dictate the liability of the federal and state governments. Uncompensated tort claims became more commonplace as the pervasiveness of government grew in the twentieth century.[vi] Congress and state legislatures passed individual acts waiving sovereign immunity to allow individual plaintiffs to recover damages in individual cases.[vii] However, the workload for Congress and state legislatures became unbearable. Further, in the twentieth century, the courts began to erode the doctrine of sovereign immunity by waiving the states' common law sovereign immunity in egregious cases. The courts did this because they felt that to not allow plaintiffs to recover in particularly egregious cases would be unjust. The courts were able to do this because common law sovereign immunity was a judge made doctrine; therefore, judges could undo it. The federal government and the states then began passing tort claims acts specifying the extent of their immunity. (Note: Statutes generally trump the common law.)

The modern rationales for the limited sovereign immunity found in Tort Claims Acts ("TCAs") are similar to its earlier justifications. First, governments need some immunity to govern. For example, governments are normally immune when enforcing statutes and regulations, when acting in a discretionary manner, or for claims arising out of military activities.[viii] Second, public funds are held in trust for all members of the public and lawsuits allow individual citizens to benefit from public funds at the expense of the public.[ix] Third, lawsuits drain the treasury and often force governments to scale back services and limit access to public lands. Finally, in the case of public lands, governments, unlike private landowners, cannot fully control its liability because the lands are public, and therefore governed by statutes and other regulations.

FEDERAL PUBLIC LANDS

The United States federal government waived its sovereign immunity in 1946 with the Federal Tort Claims Act ("FTCA.") The FTCA governs tort claims against the federal government.[x] It is a general acceptance of liability with certain broad exceptions. In pertinent part, it states that the federal government is liable for negligence like a private individual would be in the state where the alleged injury occurred.[xi] The alleged negligence could be the act or omission of a federal employee acting within the scope of employment, or the condition trails or facilities. Under the FTCA, each state where the federal land is found sets the negligence standard. Therefore, the legal standard for negligence will vary depending on in which state the federal land is found, even though the federal government is the sole owner. There even exists the possibility that the negligence standard may change within the same federal land mass.

The primary legal defense of federal land managers is the states' recreational use statutes ("RUS") found in ever state.[xii] The federal government can use the normal legal defenses afforded to individuals, including RUSs, because the law treats it like an individual. The courts have allowed the federal government to use the immunity of RUSs in a vast majority of jurisdictions, even if the RUS was not intended to apply to government entities.[xiii] For example, New York's RUS immunized the federal government from suit by a cyclist who was injured in a national historic park.[xiv] The court found that the purpose of the RUS was to protect private landowners from suit. Still, the court held that the RUS immunized the federal government even though the underlying purpose of the RUS would not be served, and even though a lower court had held that the RUS did not apply to municipalities for that same reason.

Under the majority of these statutes, the federal government is protected from ordinary negligence but not for willful or wanton acts or omissions. For example, the federal government was held liable for "willful failure to guard or warn" under Nevada's RUS for failing to post warning signs around a high temperature hot springs in an area open to the public.[xv]

The federal government appears well protected from tort claims arising out of recreation and mountain biking. RUSs protect the federal government from ordinary negligence, in addition to the intended benefits of opening private land to recreation. Although the RUSs are not a total bar to liability, the standard of "willful and wanton" behavior is difficult to meet. Further, liability can easily be avoided by using some simple risk management techniques.[xvi]

For a full discussion of R.U.S.s, please see Tina Burkhardt's article, "Landowner Liability," at IMBA's website (http://www.imba.com) under "Resources," then "Liability and Lawsuits."[xvii]

This article will next discuss the liability arising out of state-owned lands. It is important to remember that the liability issues discussed in the context of federal public lands do not apply to state-owned lands. Similarly, the liability issues discussed in the context of state-owned lands do not apply to federal public lands.

STATE-OWNED LANDS

The liability arising out of public lands owned by the states is more complex. "State-owned lands" includes all public lands the federal government does not own, including state and municipal parks, schoolyards and public college campuses, among others. State Tort Claims Acts ("TCAs") generally cover the state's liability. While similar in theory to the Federal Tort Claims Act, state TCAs vary greatly by state. For example, the states are inconsistent in their application of TCAs to the various levels of state government, i.e. counties, municipalities and school districts. There is also some authority that a municipality implicitly waives its immunity to the extent that it has liability insurance.[xviii] Despite the inconsistencies from state to state, public land manager liability for state-owned lands is less complex within a single state.

Governments and organizations that control state-owned lands ("state entities,") have four claims to immunity from torts resulting arising out of recreation. Although, all four may not be available in all jurisdictions, it is likely that some for of immunity is available.[xix] First, common law sovereign immunity is recognized in a minority of states. Second, there are two types of TCAs that provide state entities with immunity. Third, the TCAs of some states have recreational use exceptions. Fourth, Recreational Use Statutes ("RUSs") may immunize state entities.

Common Law Immunity

Common law immunity can only be asserted in a small minority of jurisdictions.[xx] However, some TCAs carry over its principles.[xxi] It is the same as sovereign immunity previously discussed. Although the common law may provide a separate basis for immunity in these states, all states now have TCAs that may affect the applicability of common law immunity.

Common law immunity is often only available to governmental, as opposed to proprietary functions. A government function is "an activity expressly or impliedly mandated or authorized by constitution, statute or other law."[xxii] A proprietary function is an activity "conducted primarily for the purpose of producing a pecuniary profit and not normally . . . supported by taxes or fees."[xxiii] However, profits are not dispositive in proving a proprietary function. The distinction is artificial and therefore there is often overlap and confusion. As a result, there is a "quagmire" of conflicting court decisions distinguishing governmental and proprietary functions.[xxiv] Local cases should be examined for a more precise idea of this distinction.

Common law immunity is also only available for discretionary, as opposed to operational or maintenance actions. Discretionary actions are "planning level decisions that involve a substantial amount of discretion and the weighing of public policy choices."[xxv] Operational actions are "common operational level decisions that present choices concerning only the implementation of planning level decisions and do not involve substantial matters of government policy."[xxvi] For example, the decision to build a bike trail is discretionary. Where, how and with what to build the trail is operational. Specific facts can muddy this apparently clear distinction. Local cases should be examined. An example of this distinction will be discussed in the following section.

Tort Claims Acts

Most states now have Tort Claims Acts ("TCAs") that define their liability, including that arising out of recreation. TCAs immunize state entities based on the recreational character of the property where the injury occurred, and not the type of activity performed on it.[xxvii] TCAs normally only protect state governments from ordinary negligence, not "willful and wanton" acts or omissions. Municipalities may also have local ordinances regarding recreational liability. The rationale for state TCAs is the same as for the FTCA. However, specific definitions and treatment of issues vary greatly from state to state depending on the TCA. TCAs often define or rely on common law definitions of governmental, proprietary, discretionary and operational actions to fully define liability. Finally, TCAs often contain exceptions for injuries caused by dangerous natural conditions and unimproved lands.[xxviii]

There are two basic varieties of TCAs: TCAs that provide the state with general immunity and TCAs that make state governments generally liable. This distinction is based on the language and syntax of a statute, and how the courts have interpreted it. [xxix] TCAs that offer general immunity give the state governments greater protection. General immunity TCA afford state entities more protections generally and allow state entities to argue that exceptions should be narrowly construed.[xxx] TCAs that make state entities generally liable offer less protection. General liability TCAs force state entities to show that their actions fall into a specific exception provided for by the TCA.

A Michigan case in which the plaintiff fell while cross-country skiing on a city-owned golf course is illustrative.[xxxi] The Michigan TCA provided the city with general immunity while the plaintiff argued that general immunity did not apply because of a proprietary exception. However, the trial court dismissed the suit because the TCA immunized the city.[xxxii] On appeal, the plaintiff argued that the maintenance of a cross-country skiing area (golf course) was a proprietary function because the plaintiff paid a $3 admission fee and $4 for ski rentals.[xxxiii] Therefore, the proprietary exception should apply and the city should be liable. The Michigan Court of Appeals did not agree.[xxxiv] The court found that, although the golf course generated a profit, "an agency may conduct an activity on a self-sustaining basis without being subject to the proprietary function exception."[xxxv] The court also found that the primary purpose was to promote public health, safety and the general welfare, not to make a profit. [xxxvi] Therefore, the operation of the golf course was a governmental function, and the TCA immunized the city.

This case stands for the principle that state entities can collect self-sustaining fees without waiving their statutory immunity. This is significant for mountain biking because some areas charge a minimal entrance or parking fee. It appears that this principle may shield state entities from liability for lawsuits arising from mountain biking, even if a small admission fee is charged.

Recreational Use Exceptions in Tort Claims Acts

Some states have enacted Tort Claims Acts ("TCA") that expressly address recreation. These TCAs offer greater protection from suit to state governments because they demonstrate that the TCA was specifically intended to exclude recreational claims.[xxxvii]

For example, in a Virginia case, a mountain biker sued the City of Richmond after he rode off a cliff adjacent to the trail.[xxxviii] The trail emerged from a wooded area going downhill before cutting hard to the left along the edge of a steep cliff.[xxxix] There were no barriers, guardrails or warning signs near the cliff or at the park.[xl] Despite this damning factual evidence, the trial court did not even consider the merits of his claim of negligence because Virginia's TCA expressly addresses recreational facilities.[xli] The court dismissed the suit.

Recreational Use Statutes

Recreational Use Statutes ("RUS") immunize state entities from ordinary negligence in some states. These are the same RUSs that immunize the federal government and private landowners. The RUS must meet three criteria to immunize a state entity. The RUS must: apply to public entities, cover the area where the plaintiff was injured and cover the activity of the injured plaintiff.

Applying the RUS to state entities is the first and most difficult issue. States are split over whether RUS immunize state entities. There are three legal arguments to extend RUS protections to state entities. First, some RUS define "landowner" so as to include state entities. Second, state entities argue that there are no statutory restrictions to not extend the benefits of RUS to state entities. Third, in states that have general liability Tort Claims Acts, state entities argue that they should be able to use RUS as a defense because the RUS is available to private individuals and the law in these states treats state entities as private individuals.

The second issue is whether the area where the injury occurred is covered by the RUS. This issue can turn on how broadly courts interpret the areas listed in the RUS For example, in a California case, the court had to decide whether "trail" used in the California RUS was limited to access trails or included the "path" itself.[xlii] The court held that "trail" and "path" were synonymous.

The third issue is whether the RUS covers the plaintiff's activities. Courts often must decide how broadly to interpret a RUS's language such as "all other similar activities." This also arises when the plaintiff is injured while passing through a recreational area or before or after recreating.

A Washington case in which a cyclist sued the City of Seattle after crashing into a jogger on a crowed trail is illustrative.[xliii] After riding to the end of a 12 1/2 mile trail, the plaintiff turned around. He came up behind slow-moving cyclist going in the same direction on a downhill section. He attempted to pass on the left, only to see a jogger coming up the hill. He then began to pass on the right when he collided with different jogger. The plaintiff alleged that the city negligently failed to provide adequate marking and traffic control on the mixed-use trail.[xliv] The court first noted that the RUS expressly covers public entities.[xlv] The application of the RUS to both the area and activity were clear. Finally, the court noted a problem with the element of causation plaintiff's underlying negligence claim. The plaintiff claimed that the lack of warning signs was the proximate cause of his injury. However, the court ruled that the plaintiff's activity, and not the condition of the land was the proximate cause of the injury.

This case is helpful to recreators and mountain bike access for several reasons. First, the Washington RUS immunized the City of Seattle from a frivolous suit, allowing the benefits of recreation to continue. Second, the court placed the responsibility for the accident on the mountain biker. The court held that the activity and not the land was the proximate cause of his injury. This precedent could help public land managers win suits when liability cannot be avoided by immunity.

RESOURCES, AND THE IMPORTANCE OF FACTS

Lawsuits are often misperceived as an inevitability, rather than just a risk of modern life. However, the fear of litigation need not cause public land managers to limit access to certain or all groups. Public land managers and public entities are often immunized from suit of lawsuits arising out of recreation, including mountain biking. Although frivolous lawsuits will arise, immunity allows public entities to dispose of lawsuits before they begin.

Although several forms of immunity are available, public land managers can do several things to better situate themselves. First, it helps to know the law governing the land in question. Local libraries, especially Federal Depository Libraries, often have books on these issues that provide a more thorough introduction. Recreation organizations such as IMBA are also great resources. However, for a truly definitive source, a lawyer should be consulted. Second, working with local recreation groups can lessen the likelihood of suits. These groups, such as IMBA, may offer volunteer maintenance while promoting safety and responsible use in their recreational community. This also increases contact and promotes good feelings between the recreational community and the otherwise faceless bureaucracy.

Finally, basic risk management will further decrease the chance of lawsuits. See Risk Management. IMBA, Freeriding and Risk Management: 15 Steps to Success, Trail News, Spring 2004, at 8.

There is just one final note. There is an old legal adage that if a lawyer ever had the choice, she would always let the other side pick the law if she could pick the facts.[xlvi] The facts and the specifics do matter, especially if a case goes to trial. But luckily, the law is with the public land managers. And with some wise decisions, the facts can be too.

LEGAL DISCLAIMER:

This article is not legal advice. The information provided an introduction to the topic and not a definitive source. The information provided is applies general principles of American jurisprudence and may not apply current legal or statutory changes in the various jurisdictions and is therefore not legal advice. Readers should not act on the advice of this article without seeking legal counsel.[xlvii]

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