"The Illinois Supreme Court has spoken,
and the applicability of the current Illinois Recreational Use Act
is clear. Farmers and other landowners must choose between two
strategies for reducing their risk of liability," said A. Bryan
Endres, an assistant professor of agricultural law in the Department
of Agricultural and Consumer Economics. "They must either open their
land to everyone or deny access to everyone."
Not affected are landowners who charge
a fee for access to their property for recreational purposes. The
act does not apply to such uses and, in these cases, landowners fall
under other existing liability laws.
Both Endres and his colleague, Donald
L. Ucthmann, a professor of agricultural law, encourage lawmakers to
consider changes to the Recreational Use Act to restore some of the
liability protection removed by the Supreme Court decision.
"An amendment to the act should
re-establish the incentive -- protection from liability risk -- so
that landowners can make private lands available to others for
recreational purposes, even if the landowners don't open their lands
to the entire public," said Uchtmann. "If the law is not amended, we
believe fewer landowners will say 'yes' to anyone who asks
permission to enter the land for recreational purposes."
And both agree such an outcome will
undermine the purpose of the Illinois Recreational Use Act, which
sought to encourage owners to make land and water areas available to
the public for recreation or conservation purposes.
The full comments by Endres and
Uchtmann are in the spring 2004 Illinois Rural Policy Digest,
published by the Department of Agricultural and Consumer Economics.
The material is also available online at
Before the December 2003 Supreme Court
decision in Hall v. Henn, landowners had some protection from
liability under the Recreational Use Act if people engaged in
recreational activities were injured on the landowner's property.
The Supreme Court decision
fundamentally changing this came in a case involving a couple who
maintained a sled run in their back yard, complete with steps, a
platform and a lugelike course constructed of snow, sprayed with
water and allowed to harden into ice, Endres said.
"The couple allowed friends and
neighbors to use the sled run so long as they received permission
and the couple was present to supervise," he said. "In January 2001,
a neighbor requested and received permission to use the sled run
along with the person who later sued. After several successful runs,
the individual who sued slipped on the stairs and suffered severe
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According to Uchtmann and Endres, the
Supreme Court's decision in favor of the plaintiff preserved the
act's immunity for a few landowners, but only those who open their
property to the general public. The act's protections would not be
available if the land were open only to selected people. The court
ruled that absent the requirement to open the land to the general
public, just about anyone who entered another's property for any
purpose other than commerce would be barred from asserting an action
for negligence against the owner.
This decision removes an important
incentive for landowners to make their lands available on a
"The goal of making private lands more
readily available to Illinois citizens will not be attained," said
Uchtmann. "Too few private landowners are likely to relinquish that
much control over their lands."
Endres explained how the Supreme Court
decision may cause rural landowners to rethink existing access
"A farmer may have opened up his field
in the fall for use by a few recreational hunters," he said. "In
order for the act's liability protection to apply now, the farmer
will have to open the land to all who request permission. This may
result in too many animals taken from a given area. In addition, it
may create a safety problem if too many hunters use the premises
"A similar problem may exist for rural
landowners to open their ponds for recreational fishing. Use of
motorbikes or other off-road vehicles may create similar concerns.
As a matter of safety and resource conservation, landowners should
be able to retain control over access to, and use of, the property
in order to better manage the resources provided by the land."
Endres also raised questions of timing.
At certain times of the year, a landowner may wish to restrict the
public's access to the property, especially during the
field-preparation and growing seasons, for example.
Both men agree that faced with such
problems and contradictions, more rural landowners are likely to
place their property off-limits to recreational use.
amendment to the act is offered by Uchtmann and Endres and included
in the full report. Their proposal would re-establish some liability
protection but also addresses the court's concern that liability
protection should not be too broad.
of Illinois news release]