Making land available for public recreation? Protection exists

This article is reproduced from the Summit Daily News, May 26, 2009, by permission of  author, Noah Klug

Every so often I run across a landowner who tells me that he would like to make his land available to the general public for skiing, hiking, or some other recreational use, but he is afraid of the liability that might result if a person were injured on the land. Fortunately, there is a state law known as the Colorado Recreational Use Statute (CRUS) that is designed to promote public use of private lands for recreation by shielding landowners from most liability. Here is a brief discussion of the law.

Generally speaking, Colorado law divides users of land into three categories: trespassers, licensees, and invitees. The potential liability of the owner depends on the status of the user and increases with each category.

• Trespassers: A trespasser is a person who enters onto land without the landowner’s consent. A landowner is liable to trespassers only if the owner causes intentional harm. For example, if a landowner erects a cable across his private road to restrict access and a trespassing mountain biker is injured when he runs into the unexpected cable, the landowner would only be liable if the cyclist could show that the landowner erected the cable with the intent of causing harm rather than simply as a roadblock.

• Licensees: A licensee is a person who enters onto land for his own purposes, but with the landowner’s consent. This category includes the landowner’s social guests. A landowner is liable to licensees for failure to take reasonable precautions or give reasonable warnings about known dangers on his property. For example, if a homeowner knows that a glass door in his home is difficult to see, but doesn’t tell his guests about it or mark it conspicuously, he could be liable if one of his guests walks into the door and breaks his nose.

• Invitees: An invitee is either a person who transacts business on the property with the owner or a member of the public who is expressly or impliedly invited onto the property. A businessman at a meeting is generally an invitee of the host company, and a shopper is an invitee of the supermarket. A landowner is liable to invitees if he fails to take reasonable action to protect against dangers — not just those of which he had actual knowledge, but also those of which he should have been aware.

In the absence of CRUS, a landowner might be justifiably reluctant to make his land available to the public for fear that the users would be categorized as licensees or invitees, and that the landowner could be liable not just for his intentional acts, but also for his failure to protect or warn about known risks or risks of which a judge or jury determine he should have known.

So what does CRUS do? CRUS provides that a landowner who either directly or indirectly invites or permits, without charge, any person to use his property for recreational purposes (a) does not thereby extend any assurance that the property is safe for any purpose; (b) does not confer upon such person the legal status of an invitee or licensee to whom special duties are owed; and (c) does not assume responsibility in any way for such person’s acts or omissions. The term “recreational purposes” is given a broad definition that includes most pursuits. In the event that a recreational user of land sues the landowner, the prevailing party in the action is entitled to his attorney fees and costs of litigation. CRUS’s protections extend to the landowner’s tenants and other occupants.

A landowner can still be liable under CRUS if:

• He intentionally harms someone;
• He charges for the use of his land;
• He permits use of the land as part of his business; or
• He maintains an “attractive nuisance” on the land, which is a dangerous condition that is extraordinarily attractive to children (such as unattended machinery). Abandoned mining operations and areas of natural or manmade water storage or diversion (i.e. ponds, ditches and streams) are not considered attractive nuisances under CRUS.

So, a landowner who is hesitating to make his land available to the public should consider whether CRUS’s protections justify a change in position.

Noah Klug is an attorney with Bauer & Burns, P.C. in Breckenridge. He may be reached at 970-453-2734 or Noah@BreckenridgeLawyer.com. This article is intended as a general overview; consult an attorney for a review of your particular situation.