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"In some circumstances, changes in the Illinois Recreational Use
Act made this year by the Illinois Legislature may actually
increase a landowner's liability risk," said Bryan Endres, a U
of I College of Agricultural, Consumer and Environmental
Sciences assistant professor of agricultural law who co-authored
the study with U of I Extension agricultural law specialist
Donald Uchtmann. "This is an important issue for many Illinois
farmers who allow hunting and other recreational activities on
their property. "The changes in the law which went into effect
in August actually define protected recreational use as hunting
and recreational shooting. Landowners opening their land for
hiking, swimming, bicycling, bird-watching, ATV riding or other
activities are not protected from premises liability claims."
The entire report,
"New Recreational Use Act for Illinois Landowner Liability: Two
Steps Forward, One Step Back," may be accessed online at
http://www.farmdoc.uiuc.edu/.
[To download Adobe Acrobat Reader for
the report file, click here.]
A 2003 Illinois Supreme Court decision led to the 2005
legislative action.
That court decision upset the long-settled expectation on the
part of many rural landowners that they had liability protection
under the Recreational Use Act. The decision narrowed the scope
of that protection by offering such protection only to those
landowners who opened their property to the general public for
recreational use.
"According to the court, the act no longer protected
landowners who allowed only invited or selected guests onto
their land for recreational purposes," said Endres.
An earlier report by Endres and Uchtmann recommended that
rural landowners should reassess the recreational use they
allowed on their land. However, the options cited by Endres and
Uchtmann at that time are no longer valid in the wake of the new
law.
"We believe the new law took two steps forward and one
backward," Endres explained, "and this means a new set of
options to consider."
The study's authors believe one "step forward" was the
clarification of "public" to include "selected individuals."
"The court decision required landowners to open their land to
everyone to receive liability protection," Endres said. "The
amendments to the law passed this year by the legislature
explicitly overrule this interpretation and establish that
landowners may limit access to their property to only selected
individuals, while maintaining immunity protection under the
act."
A second "step forward" eliminates rural residences from
liability protection.
"This encourages all landowners to exercise reasonable care
in making residential areas safe for permitted visitors," Endres
said. "It also furthers the original purpose of the act --
encouraging the opening of true 'open space' for outdoor
activities."
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However, the "step back" narrows protection by redefining
"recreational or conservation purpose" of the land.
"The 2005 amendments drastically reduced the scope of activities
that qualify as 'recreational or conservation purpose' by including
only 'hunting and recreational shooting' as activities that would
provide the landowner with immunity," Endres said.
"In other words, landowners opening their land are no longer
protected from premises liability claims unless the injured person
was hunting or engaged in recreational shooting."
Prior to the 2005 amendments, Endres and Uchtmann outlined three
options for landowners considering granting permission for
recreational use on their land.
The first option, based on the 2003 court decision, required
landowners to open their land to everyone in order to receive the
act's protection. The 2005 law overrules the court decision but
limits protection to those engaged only in hunting or
recreational shooting. Accordingly, opening land to the general
public is no longer a viable strategy for liability protection.
A second option is to open their lands to almost no one.
"Many landowners adopted this risk management strategy after the
court decision, and it may remain the preferred strategy for many,"
Endres said.
"Landowners, however, after the 2005 amendments, are now
protected from liability if the injured person was engaged in
hunting or recreational shooting, even if most prospective users are
denied access."
The third option is to open land to selected individuals.
"Again, this will work for hunters and recreational shooters, but
all other types of recreational users will continue to fall outside
the act's scope of liability protection," Endres said.
"Under all options, landowners should consider liability
insurance to manage risk."
Both Endres and Uchtmann expressed hopes that in the future the
legislature will again amend the Recreational Use Act.
"We believe it needs to broaden the number of recreational
activities warranting protection under the act and restore certainty
to landowners who generously open their rural lands to the public
for recreational and conservation purposes beyond hunting and
recreational shooting," Endres said.
[University
of Illinois College of Agricultural, Consumer and Environmental
Sciences news release]
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