The Big Catch Navigating South Carolina's Recreational Use Statute, 1115 SCBJ, SC Lawyer, November 2015, #20

Author:Joshua D. Spencer, J.

The Big Catch Navigating South Carolina's Recreational Use Statute

Vol. 27 Issue 3 Pg. 20

South Carolina BAR Journal

November, 2015

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0 Joshua D. Spencer, J.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Rebecca Byers[1] lives on 50 acres of land in the Lowcountry near the Port Royal Sound. The property includes a 25-acre fish pond with a paved causeway that runs across the pond. Byers built the causeway as a convenient way to quickly access the land on both sides of the pond. Byers allows the public to access and use the fish pond.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0During hurricane season, a hurricane hit the coast of South Carolina. Byers left her home in the Lowcountry and drove to the Upstate to stay with family while the hurricane passed. The hurricane caused substantial damage to Byers' property including the causeway. The rain from the hurricane penetrated portions of the pavement and washed away some of the earth underneath it, which formed a sinkhole.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0After the storm passed, Scott Jensen2 , an avid angler, decided to go fishing on Byers' pond. Jensen wanted to drive across the causeway to access the other side of the pond. While driving across the causeway, he drove over the sinkhole. The pavement collapsed from the weight of Jensen's pickup truck and the front of the truck fell into the sinkhole. Jensen suffered a laceration on his head where he hit the steering wheel and a broken collarbone.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Jensen filed a lawsuit against Byers alleging that Byers negligently and recklessly designed the causeway, failed to maintain the causeway, failed to illuminate the causeway, and failed to warn of the erosion hazard.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0To Jensen's surprise, there is a catch. The South Carolina courts will likely hold that Byers is shielded from liability for Jensen's injuries under the South Carolina Recreational Use Statute.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0A public policy statute

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In 1962, the S.C. Legislature enacted the South Carolina Recreational Use Statute, or SCRUS, to "encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes."3 The S.C. Court of Appeals explained that "landowners owe 'no duty of care to keep the premises safe' for recreational users and need not 'give any warning of a dangerous condition, use, structure or activity' on the property"4

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0The legislature defines an "owner" as the "the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises."5 The statute applies to corporate entities as well as individuals, which demonstrates the sweeping protection that the legislature intended to provide.6 This means that a corporate entity receives protection from liability when it allows the public to use the corporation's land for recreational purposes. However, contractors are not considered owners and, therefore, do not fall under the protection of the SCRUS.7

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0"Land" enjoys a broad definition that includes, in addition to land, "roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty"8 The legislature also enumerates a non-exhaustive list of recreational activities covered by the statute including "hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, summer and winter sports and viewing or enjoying historical, archaeological, scenic, or scientific sites."9

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Know the limits

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Although the statute is robust and routinely upheld, its protection from liability has limits. The SCRUS protects landowners from liability if the owner is negligent,10 but the statute will not protect an owner from liability if the owner is "grossly negligent, [or exhibits a] willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity"11 The S.C. Supreme Court has defined gross negligence as "the intentional, conscious failure to do something which is incumbent upon one to do or the doing of a thing intentionally that one ought not to do."12 The Fourth Circuit states that "[a] willful failure to guard or warn would require actual knowledge of the owner that ... a condition exists involving an unreasonable risk of death or serious bodily harm; that the condition is not apparent to those using the property; and that having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences. This test excludes either constructive knowledge or a duty to inspect"13

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0Additionally, the SCRUS will not protect an owner from liability if the owner charges a fee to enter the land for recreational use. A "'charge' means the admission price or fee asked in return for invitation or permission to enter or go upon the land."14

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0However, there are two exceptions to the "no charge rule." First, if the owner leases land to the state or federal government or a state or federal government agency, then any compensation the owner receives will not cancel the statutory protection.15 Second, if an owner charges a fee for vehicle parking, as opposed to actual admission onto the property, then the compensation will not cancel the statutory protection.16 Notice that the SCRUS does not prohibit a landowner from charging a fee to every person who enters the land, but only provides liability protection for landowners who refrain from charging a fee to those who enter the land for recreational purposes.

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0How South Carolina courts apply the statute

\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0\xA0In 1997, the S.C. Court of Appeals held...

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