Liability and Protection
in
Private Outdoor Recreation

by Robert D. Espeseth

The surging demand for outdoor recreation and related facilities has generated interest and opportunity for landowners and the ambitious to develop the facilities and services to meet these demands as a means of increasing income and undertaking new challenges. However, along with the opportunities there are also several responsibilities that the entrepreneur immediately assumes. Those who are considering or are already in recreation business should recognize that the operation of this type of enterprise is no different than the basic operation and management of any private business.

As soon as a recreation operator makes his land available for public use, he encounters a number of problems and concerns. One he must immediately face is the liability he will incur as the operator of an enterprise. An operator generally places himself in a more vulnerable position when he charges a fee to others for the use of his property, facilities, and services than if it is free. A section of Chapter 70, Illinois Revised Statutes (1979) limits the liability of landowners who make their land and water areas available to the public for recreational purposes but is restricted to owners who allow use without charge.

The laws relating to liability continue to be drawn from common law, or a set of general principles, rather than having been firmly incorporated into statute law. Because strict interpretation of the law depends primarily upon the decision of a jury, it is useful to look at the common law doctrines upon which liability is founded. Although it is essential to consult an attorney and/or insurance counselor for further interpretation of liability specific to the operation of a particular outdoor recreation enterprise, an understanding of the basic concepts involved can provide some guidance.

"Negligence," the basis of liability, is the essential element which must be proven before a person can be legally held liable for unintentional injury to others. The "Law of Negligence" is based upon precedent as established by previous court decisions.

Negligence is generally considered to be the omission by an individual to do something which a "reasonable man" would do under similar circumstances; conversely, negligence may be the act of doing something which a reasonable and prudent man would not do. In the court system, it is this hypothetical "reasonable man" against whom the defendant's action is measured and the standard which the jury uses in its determination.

Negligence is further gauged by one's ability to anticipate danger. Thus, the foreseeability of danger is an important factor in determining liability. It is important to consider this point in the preventive maintenance and safety programs of any operation. By doing so, one can anticipate thus heading off potential sources of negligence.

Unavoidable accidents do happen, and where there is no negligence such actions do not form the basis for legal action. Most legal authorities agree that four general elements are necessary to support a negligence suit. These are:

1. A legal duty or obligation to conform to a standard of behavior to protect others from unreasonable risks.

2. A breach of that duty caused by failure to conform to the standard required under the circumstances.

3. A sufficiently close causal connection between the conduct of the individual and resulting injury to another.

4. Actual injury or loss to the interests of another.

A possessor of property (an owner, renter, or leasee) may voluntarily or involuntarily create relationships with other parties concerning his right to possession of property. His rights can be shared with a person who desires to enter upon the premises in various ways, depending upon such factors as permission to enter and purpose for which entry is obtained. The person entering the premises may be (1) an invitee (or business visitor), (2) a licensee, (3) a trespasser.

An invitee is a person who comes on the land with the possessor's permission and pays a fee or other consideration for the privilege. An operator who invites others must make a reasonable attempt to have the premises in a safe condition. A licensee is a person who enters the premises for his own purposes and with the expressed or implied consent of the possessor. The possessor, in this instance, is under no duty to make the premises safe or to warn of dangerous conditions unless they are concealed and he knows they exist. The licensee, in effect, must take the premises as he finds them. The law also recognized social custom as an aspect of liability. A neighbor who calls socially cannot ordinarily recover damages, unless it can be proven that the host was grossly negligent. A trespasser is a person who comes upon a possessor's land without permission. In most states, the liability for injuries to trespassers is very slight, but there have been some unusual cases in this area.

In regard to liability and children, the child, if accompanied by an adult, usually takes on the category of the adult. For example, in the case of trespass, a child is generally treated in the same manner as an adult. One important exception is the Attractive Nuisance Doctrine. This doctrine applies when there is an attraction and

Illinois Parks and Recreation 30 November/December 1980

children are induced to come upon the land as a result of this attraction. In this instance, they are no longer considered to be mere trespassers. However, if the attraction which caused a child to trespass was a piece of machinery but he injures himself falling into an unconcealed well, liability would probably not be imposed.

Generally, keys or other devices that begin machinery operation need to be removed and any other necessary safety precautions taken so it can't be started by accident. As many recreation enterprises use water as an attraction in operation of their area, the possessor may need to guard against suits for damages where children are involved by installing fences or other barriers. Simply erecting warning signs is often not considered sufficient as small children may not be expected to read or comprehend adequately.

There are a number of common methods for accident prevention including good safety programs, preventive maintenance and adequate supervision. Any safety program should begin with an inspection or study of the entire area to identify existing and potential hazards and to determine methods of eliminating them. These items should be written down on cards or forms on which it can be noted when corrective action was taken, costs incurred, vendors utilized, etc. Relying on memory often doesn't provide adequate protection. There should be a continuing maintenance inspection program with prompt repairs or improvements made as soon as the deficiency is identified. An operator may have a difficult time defending a claim or lawsuit if there is a lack of proper safety precautions, even though the absence of these precautions may not be the actual cause of the accident.

Robert D. Espeseth is Associate Professor and Outdoor Recreation Specialist, Office of Recreation and Park Resources, University of Illinois at Champaign. A graduate of the University of Wisconsin-Madison with a B.S. in Landscape Architecture and an M.S. in Landscape Architecture and Regional Planning, Boh has held positions with the Wisconsin State Park System, the Genesee (Michigan) County Parks & Recreation Commission and with Ellis Arndt & Truesdell, a private consulting firm. Through the Cooperative Extension Service he has worked with many private recreation enterprises on planning and operational problems. Bob is currently 1st Vice President of the National Society for Park Resources, a branch of NRPA.

Overall supervision of the enterprise should be provided to insure maximum safety. A plan for emergency medical treatment should be prepared, including emergency communication between the recreation area and medical facilities. First aid training through the Red Cross or another agency is an absolute necessity for key personnel.

Regulations pertaining to the use of recreation areas should be posted to provide reasonable safeguards for those who use the area. A map of the area should also show defined limits of where visitors are allowed to go. The operator is also obligated to protect an invitee from injury caused by other guests. This responsibility is similar to that relating to dangerous conditions and affirmative acts of negligence. Basically, it is the duty of the operator to control the conduct of all invitees while they are on the property.

If, despite all precautions that are taken to avoid an accident, one still occurs, there are certain things that can be done to lessen the risk of litigation. Proper first aid should be rendered and in case of doubt, a doctor or an ambulance should be called. Anticipating the possibility of litigation, it is useful to identify potential witnesses, take photographs of prevailing conditions, and to obtain any additional appropriate information. The attorney and insurance agent for the enterprise should be notified as soon as possible.

It is not necessary or productive to overreact to the thought of potential liability suits as a constant threat shadowing a recreation enterprise. As long as adequate supervision, a good safety program, and a logical preventive maintenance program are provided, the possibility of law suits can be effectively reduced to minimal levels.

Illinois Parks and Recreation 31 November/December 1980