MKB Blog

Swim at Whose Risk?

  • Feb 20, 2019
  • Ryan E. Abrams
  • By Ryan E. Abrams

To the great benefit of the communities that surround them, many privately owned forests and pastoral landscapes across Pennsylvania are open for use by the public.  Private landowners may share their land through something as formal as the dedication of a trail easement to something as informal as simply allowing the public onto land to swim in a pond. These charitable actions, which are encouraged by laws that limit the liability of landowners to public recreational users on their land, aid in public conservation efforts and, in turn, the improvement of the quality of life across the Commonwealth.  Recently, the Pennsylvania legislature acted to bolster the already strong protections against liability claims, ensuring the preservation and public enjoyment of more of the natural beauty of Pennsylvania for generations to come.

In 1965, the Pennsylvania legislature passed the Recreational Use of Land and Water Act, 1965 P.L. 1860, No. 585 (“RULWA”), which significantly limits the liability of landowners who choose to hold out their land to the public for “recreational purposes.”  RULWA acted as a model for similar legislation passed across the country, and helped to drive conservation efforts in Pennsylvania and nationwide by limiting the risk exposure of private landowners who desire to dedicate their vacant or lightly developed lands to the public as an alternative to new development.  This past October, Pennsylvania enacted a major amendment to RULWA when Governor Wolf signed House Bill No. 544, or Act 98, into law.

First, Act 98 further expands RULWA’s already broad limitation on landowner liability to recreational users, extending its protections to include claims based on “acts of omission by landowners; or acts or acts of omission by recreational users.”  With this change, the legislature has made it clear that landowners holding out their lands to the public for recreational purposes do not have a duty to repair known dangerous conditions, such as an unstable bridge over a stream.  Furthermore, it is now clear that such landowners also have limited liability for claims based on the negligent or willful acts of recreational users on their land.  RULWA, as amended, still holds landowners liable for their “willful or malicious failure to warn” of known dangerous conditions, which would require a potential plaintiff to show intentional or reckless conduct on the part of the landowner.

As a further expansion of the liability protection afforded to landowners by RULWA, Act 98 amends the definition of “recreational purpose” to include “any activity undertaken or viewed for exercise, sport, education, recreation, relaxation or pleasure,” and now specifically includes, “snowmobiling, all-terrain vehicle and motorcycle riding.”  Additionally, Act 98 expands the definition of “land” falling under the protections of RULWA to include “amenities… boating access and launch ramps, bridges, fishing piers, boat docs, ramps, paths, paved or unpaved trails and hunting blinds,” as well as, “areas providing access to, or parking for, lands and waters, including trails or piers for use by recreational users with disabilities.” These expanded definitions make it much more difficult for potential plaintiffs coming onto private land for recreational purposes to argue that RULWA does not apply to a prospective claim.  For example, potential plaintiffs will no longer be able to take the position that their specific recreational purpose, such as playing football, or the place on the property where the injury occurred, such as a paved trail or parking lot, was not intended to be subject to the protections afforded by RULWA.

In addition, in an effort to further ease financial burdens on this class of landowners, and to encourage more publicly beneficial uses of lands, the legislature introduced another significant change to RULWA, which allows private landowners holding out their lands for recreational purposes to offset their carrying costs with voluntary private contributions.  Under the pre-amendment statute, the liability protections afforded by RULWA were only available to landowners who permitted recreational uses of their land “without charge.”  Act 98 amends RULWA to allow landowners to accept “voluntary contributions” that are for the purpose of “conserving and maintaining the land;” “paying taxes on the real estate;” or “paying for liability insurance on the real property.”  This change has significance beyond savings to the landowner as it allows the public to provide direct support to desirable uses of the land in their community.  Of course, landowners who accept such donations will have the burden of maintaining accurate records of such donations and the use of such funds.

With these three distinct amendments to RULWA, the Pennsylvania legislature took action to reduce the risk for private landowners who desire to get involved in statewide conservation efforts, thereby ensuring that more undeveloped land throughout the state will be held out to the public for recreational purposes. 

If you have questions regarding the recent changes to RULWA, or if you or are considering opening your lands for public recreational use, please contact Stephan Pahides or Ryan Abrams of McCausland Keen + Buckman’s Real Estate Group.

DISCLAIMER: Although McCausland Keen + Buckman always strives to provide accurate and current information, the foregoing is intended for general informational purposes only, shall not be construed as legal advice, and does not create or constitute an attorney-client relationship.

Ryan E. Abrams

about the author

Ryan E. Abrams

Ryan counsels real estate and corporate clients through a variety of transactions, including sale and leasing agreements, refinancings and acquisitions.

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