Protection for the Recreational Property Landowner: the Alabama Recreational Use Statutes
| Jurisdiction | Alabama,United States |
| Citation | Vol. 79 No. 1 Pg. 0019 |
| Pages | 0019 |
| Publication year | 2018 |
By George W. Royer, Jr.
The Alabama Recreational Use Statutes are contained in Ala. Code §§ 35-15-1, et seq. (Chapter 1), and 35-15-20, et seq. (Chapter 2). These two groups of Alabama statutes deal with the same subject matter, i.e., the level of conduct required for liability arising from the use of non-commercial recreational property and "are to be read complimentary [sic] to each other." Grice v. City of Dothan, 670 F. Supp. 318, 321 (M.D. Ala. 1983). As discussed in this article, the Recreational Use Statutes provide substantial protection to the owners of non-commercial recreational property for injuries sustained by users of such property. The policy behind the Recreational Use Statutes has been declared by the legislature in Ala. Code § 35-15-20 to be: "[T]hat it is in the public interest to encourage owners of land to make such areas available to the public for non-commercial purposes by limiting such owners' liability towards persons entering thereon for such purposes [and] that such limitation on liability would encourage owners of land to allow non-commercial public recreational use of land which would not otherwise be open to the public . . ."
The statutes have wide application to users of non-commercial recreational property. The statutes are specifically applicable to claims of minors as well as persons of full legal age. See Ala. Code § 35-15-21(4) defining "person" for the purposes of the statutes as: "Any individual, regardless of age, maturity or experience." See also Grice, 670 F. Supp at 322 ("It is obvious to this court that the Alabama legislature did not intend for minors to be treated any differently from adults relative to the duty owed to them by landowners under §§ 35-15-20 through 28."); Ex parte City of Geneva, 707 So. 2d 626 (Ala. 1997) (applying protections of the Recreational Use Statutes to claims brought on behalf of 11-year old minor plaintiff). Employees and "agents" of a non-commercial recreational property owner are also entitled to assert the protections of the Recreational Use Statutes. Independent contractors are, however, not covered. Ala Code § 35-15-21(1) states, in this regard, as follows: "For the purpose of this Article, an employee or agent of the owner, but not an independent contractor while conducting activities upon the outdoor recreational land, is deemed to be an owner." (emphasis added).
Although the Recreational Use Statutes offer protections for landowners and their employees for non-commercial recreational use of property, the fact that the property owner may charge an admission or other fee for use of the property does not preclude application of the protections of the statutes. The issue is whether the facility is intended to be operated for the purpose of making a profit. Ala. Code § 35-15-26 states that "[t]he liability limitation provisions of this Article shall not apply in any cause of action arising from acts or omissions occurring on or connected with land upon which any commercial recreational enterprise is conducted." The Recreational Use Statutes define "commercial recreational use" as: "Any use of land for the purpose of receiving consideration for opening such land to commercial use where such use or activity is profit-motivated." Ala. Code § 35-15-21(5). (emphasis added). Construing these provisions of the Recreational Use Statutes, the supreme court has held that the property owner's intent, not its accounting, determines whether the usage of recreational property is profit-motivated. "Whether actual profit is derived from the acts imputed to the defendant . . . is not a material inquiry . . . the inquiry is, was it the purpose to derive profit?" Owens v. Grant, 569 So.2d 707, 711-12 (Ala. 1990).
Chapter 1 of the Recreational Use Statutes
Sections 35-35-1 through 5 "define and limit the duties of an owner of recreational land in relation to a person using the premises for recreational purposes." Poole v. City of Gadsden, 541 So.2d 510, 512-13 (Ala. 1989). Section 35-15-1 states as follows:
An owner, lessee or occupant of premises owes no duty of care to keep such premises safe for entry and use by others for hunting, fishing, trapping, camping, water sports, hiking, boating, sightseeing, caving, climbing, repelling or other recreational purposes or to give any warning of hazardous conditions, use of structures or activities on such premises to persons entering for the above stated purposes, except as provided in § 35-15-3.
(emphasis added).
Section 35-15-3 provides as follows:
This article does not limit the liability which otherwise exists for wilful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity; or for injury suffered in any case where permission to hunt, fish, trap, camp, hike, cave, climb, rappel, or sight-see was granted for commercial enterprise for profit; or for injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike, or sight-see was granted to third persons as to whom the person granting permission, or the owner, lessee, or occupant of the premises owned a duty to keep the premises safe or to warn of danger.
(emphasis added).
Federal and state courts in Alabama have interpreted § 35-15-3 of Chapter 1 to provide that liability against an owner, lessee or occupant of property used for recreational purposes may only be imposed in the event that there is a "willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity . . ." Clark v. Tennessee Valley Authority, 606 F. Supp. 130, 131 (N.D. Ala. 1985) (emphasis in original); Poole, 541 So.2d at 513-14 (Ala. 1989). ("An owner, whether public or private, owes no duty to users of the premises except for injury caused by willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity.") (emphasis added). See also Ex parte City of Geneva, 707 So.2d 626, 628 (Ala. 1997) (same). Because of the limitation of liability contained in §§ 35-15-1 and 3, "an owner, whether public or private, owes no duty whatsoever to provide safe premises to users." Clark, 606 F. Supp. at 131.
Chapter 2 of the Recreational Use Statutes
Chapter 2 of the Recreational Use Statutes is contained in Ala. Code §§ 35-15-20 through 28. Although Chapter 1 does not contain a definition of what type of property comes within the protections of the Recreational Use Statutes, Chapter 2 does contain such a definition. Chapter 2 defines "Outdoor Recreational Land" for the purposes of the statutes as: "Land and water, as well as buildings, structures, machinery, and such other appurtenances used for or susceptible of recreational use."
The substantive provisions of Chapter 2 of the Recreational Use Statues providing protections to non-commercial landowners are as follows:
§ 35-15-22. Inspection and warning not required....
Except as specifically recognized by or provided in this article, an owner of outdoor recreational land who permits non-commercial public recreational use of such land owes no duty of care to inspect or keep such land safe for entry or use
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