Pennsylvania's Recreational Use of Land and Water Act INTRODUCTION recreational users may more reasonably expect it to be Pennsylvania has a law that limits the legal liability of adequately monitored and maintained; landowners who make their land available to the public for free recreation. The purpose of the law is to supplement the (2) Size of the Land ­ Larger properties are harder to availability of publicly owned parks and forests by encouraging maintain and so are more likely to receive recreational landowners to allow hikers, fishermen and other recreational immunity; users onto their properties. The Recreational Use of Land and Water Act ("RULWA"), found in Purdon's Pennsylvania Statutes, title 68, sections 477-1 et seq., creates that incentive by (3) Location of the Land ­ The more rural the property the limiting the traditional duty of care that landowners owe to more likely it will receive protection under the Act, because it entrants upon their land. So long as no entrance or use fee is is more difficult and expensive for the owner to monitor and charged, the Act provides that landowners owe no duty of maintain; care to keep their land safe for recreational users and have no duty to warn of dangerous conditions. Excepted out of this (4) Openness ­ Open property is more likely to receive liability limitation are instances where landowners willfully or protection than enclosed property; and maliciously fail to guard or warn of dangerous conditions. That is, the law immunizes landowners only from claims of (5) Use of the Land ­ Property is more likely to receive negligence. Every other state in the nation has similar protection if the owner uses it exclusively for recreational, legislation. rather than business, purposes. PEOPLE COVERED BY THE ACT SITE IMPROVEMENTS The "owners" of land protected by the Act include public and The following cases focus on the nature and extent of site private fee title holders as well as lessees (hunt clubs, e.g.) and improvements that might negate RULWA immunity: other persons or organizations "in control of the premises." Holders of conservation easements and trail easements are The state Supreme Court ruled that the Act was not protected under RULWA if they exercise sufficient control over intended to apply to swimming pools, whether indoor (Rivera the land to be subject to liability as a "possessor." (See Stanton v. Philadelphia Theological Seminary (Pa. Supreme Ct. 1986)) v. Lackawanna Energy Ltd. (Pa. Supreme Ct. 2005)(RULWA or outdoor (City of Philadelphia v. Duda (Pa. Supreme Ct. immunizes power company from negligence claim where bike 1991)). rider collided with gate that company had erected within the 70- foot wide easement over mostly undeveloped land it held for RULWA immunity does not cover injuries sustained on power transmission)). basketball courts, which are "completely improved" recreational facilities (Walsh v. City of Philadelphia (Pa. LAND COVERED BY THE ACT Supreme Ct. 1991)). Although on its face RULWA applies to all recreational "land" improved and unimproved, large and small, rural and urban in Playgrounds are too "developed" to qualify for immunity the last 15 years or so, Pennsylvania courts have tended to read (DiMino v. Borough of Pottstown (Pa. Commonwealth Ct. the Act narrowly, claiming that the legislature intended it to 1991)). apply only to large land holdings for outdoor recreational use. Playing fields generally are held not to be "land" within Courts weigh several factors to decide whether the land where the protection of the Act (Brown v. Tunkhannock Twp. (Pa. the injury occurred has been so altered from its natural state that Commonwealth Ct. 1995) (baseball field); Seifert v. it is no longer "land" within the meaning of the Act. In order of Downingtown Area School District (Pa. Commonwealth Ct. importance: 1992)(lacrosse field); Lewis v. Drexel University (Pa. Superior Ct. 2001, unreported)(football field); but see (1) Extent of Improvements ­ The more developed the property Wilkinson v. Conoy Twp. (Pa. Commonwealth Ct. the less likely it is to receive protection under RULWA, because 1996)(softball field is "land" under RULWA)). An unimproved grassy area at Penns Landing in Philadelphia claimed immunity under RULWA. The judge, however, sent was deemed outside the Act's scope, given that the site as a to the jury the question of whether PP&L was willful in not whole was highly developed (Mills v. Commonwealth (Pa. posting warning signs. A previous tubing accident had Supreme Ct. 1993); compare Lory v. City of Philadelphia (Pa. occurred in the same location, and there was testimony that the Supreme Ct. 1996) (swimming hole in "remote" wooded area of dangerous rapid where the drowning occurred was not visible Philadelphia is covered by RULWA)). to people tubing upstream (Rivera v. Pennsylvania Power & Light Co. (Pa. Superior Ct. 2003)). RULWA immunity has been found in several cases where people were injured at outdoor sites containing limited improvements: GOVERNMENTAL IMMUNITY Interestingly, Pennsylvania's governmental immunity statutes, An earthen hiking trail in a state park is not an improvement the Tort Claims and Sovereign Immunity Acts, shield vitiating the Act's immunity (Pomeren v. Commonwealth (Pa. municipalities and Commonwealth agencies from claims of Commonwealth Ct. 1988)). willful misconduct. Liability only may be imposed upon these entities for their negligent acts. But, as noted above, where an The owner of property containing a footpath created by injury occurs on "land" within the meaning of RULWA, the continuous usage, which led down to the Swatara Creek, has no law shields landowners from negligence suits. In essence, duty to erect a warning sign or fence between his property and public agencies are granted complete immunity for many the adjacent municipal park (Rightnour v. Borough of recreational injuries. (See Lory v. City of Philadelphia (Pa. Middletown (Lancaster Cty. Ct. of Common Pleas 2001)). Supreme Ct. 1996)(city immune for both its negligent maintenance of recreational lands and its willful failure to A landscaped park containing a picnic shelter is still guard or warn of hazards on that property)). "unimproved" land for RULWA purposes (Brezinski v. County of Allegheny (Pa. Commonwealth Ct. 1996)). RECREATIONAL PURPOSE; PUBLIC ACCESS An artificial lake is just as subject to RULWA protection as Though not all recreational land is covered by the Act, the a natural lake, although the dam structure itself is not covered law's definition of "recreational purpose" is broad enough to (Stone v. York Haven Power Co. (Pa. Supreme Ct. 2000)). include almost any reason for entering onto undeveloped land, from hiking to water sports to motorbiking. (See Commonwealth of Pa. v. Auresto (Pa. Supreme Ct. An abandoned rail line in a wooded area is covered by 1986)(RULWA covers snowmobile injury)). This is true even RULWA, even where the plaintiff fell from a braced railroad if the landowner has not expressly invited or permitted the trestle (Yanno v. Consolidated Rail Corp. (Pa. Superior Ct. public to enter the property. However, where the land is open 1999)(but may no longer be good law after Stone)). only to selected people rather than to the public in general, this will weigh against RULWA immunity. (See Burke v. Brace Uncertainty about what constitutes an improvement under the (Monroe Cty. Ct. of Common Pleas 2000)(lake located in a Act reportedly has had a dampening effect on efforts to improve subdivision and open only to homeowner association members public access to outdoor recreation sites. Public and private and guests is not covered by RULWA)). landowners are concerned that installation of fishing piers, boat docks, parking facilities, or paths and ramps for wheelchair use NO USER FEE will strip much-needed RULWA immunity from otherwise protected land. A bill introduced in the state Senate in the late Finally, charging recreational users a fee (which is different 1990s attempted to clarify that public access improvements than accepting payment for an easement) takes the property would not affect immunity under the Act, but the legislation was out from under the Act's protection. not successful. Copies of this fact sheet may be obtained from: FAILURE TO WARN PA Department of Conservation and Natural Resources As noted above, although negligence liability is negated by the Bureau of Recreation and Conservation Act, a landowner remains liable to recreational users for "willful Rachel Carson State Office Building or malicious failure to guard or warn" against a dangerous P.O. Box 8475 condition. To determine whether an owner's behavior was Harrisburg, PA 17105-8475 willful, courts will look at two things: whether the owner had Telephone: (717) 787-7672 actual knowledge of the threat (e.g., was there a prior accident in Fax: (717) 772-4363 that same spot); and whether the danger would be obvious to an www.dcnr.state.pa.us entrant upon the land. If the threat is obvious, recreational users are considered to be put on notice, which precludes liability on the part of the landowner. In a recent drowning case, for example, landowner Pennsylvania Power & Light Company Prepared by Debra Wolf Goldstein, Esq., of counsel to Penna. Land Trust Association, with financing in part from the Commonwealth of PA, Department of Conservation & Natural Resources, May 2006. This fact sheet is for purposes of general information only and is not intended as legal advice. The accuracy of the information could be affected by court rulings or statutory changes made after publication.