No, not that kind of recreational use. Outdoor recreation.

Given that children today spend so much time indoors and online, and fear of tort liability is frequently cited as a factor in reducing access to outdoor recreational space, we thought it appropriate to re-visit state laws designed to encourage outdoor recreation by reducing liability of landowners. In the tri-state area, those laws have had mixed success.

Beginning in the 1950s, states began adopting recreational use statutes, which shield landowners from tort liability when people engage in certain types of outdoor recreation on those lands, thus encouraging recreation. Although New York's, New Jersey's, and Connecticut's statutes are structured similarly, their application has been far from uniform.

History of Recreational Use Statutes

In response to a growing need for more outdoor recreational space, the Council of State Governments drafted model legislation in 1965 to encourage making more private land available for recreation. Council of State Governments, 1965 Suggested State Legislation 150-52 (1965) (hereafter the Model Act). The Model Act seeks to accomplish this goal by absolving private landowners of tort liability by removing the duty of care they would otherwise owe. The Model Act provides a non-exhaustive list of recreational activities for which landowners would be freed from liability. There are also limits to the Model Act's protection: it does not protect landowners who make their land available for a fee or who willfully or maliciously fail to guard or warn about known dangers. The Model Act does not specifically address publicly-owned land, which has proven to be a contentious and divergent area of interpretation.

Since it was drafted, the Model Act has been the basis for most state recreational use statutes, and almost every recreational use statute resembles the Model Act.

New York: Gen. Oblig. Law §9-103

Originally enacted before the Model Act to encourage hunting, fishing, trapping, and dog training, New York's current recreational use statute is constructed in largely the same fashion as the Model Act. It differs in one key aspect: the list of recreational activities to which the act applies is exclusive. Courts have firmly applied this construction, refusing to apply the statute to activities that are recreational but not listed in the statute. (Only these activities are protected: hunting, fishing, organized gleaning, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, spelunking, horseback and bicycle riding, hang gliding, recreational motorized vehicle operation, snowmobiling, wood cutting/gathering, and dog training.) Such was the case in Cohen v. State of New York, 15 Misc. 3d 1144(A) (Ct. Cl. 2007), rev'd on other grounds, 50 A.D.3d 1234 (3d Dep't 2008), where the court confirmed that swimming is not covered by the statute, as it is not explicitly listed.

Not only must the specific use be listed, but New York courts also require that the plaintiff be recreating on land suitable for that activity. Determining whether a piece of land is “suitable” for an activity has proven to be a challenge. Typically, courts look to whether the premises are the “type of property which is not only physically conducive to the particular activity or sport but is also a type which would be appropriate for public use in pursuing the activity as recreation.” Iannotti v. Consolidated Rail, 74 N.Y.2d 39, 45 (1989); see also Bragg v. Genesee County Agric. Soc'y, 84 N.Y.2d 544, 551-52 (N.Y. 1994). The central factor in making this assessment is whether there is a history of the land being used for the recreational activity. Given these criteria, all types of land are potentially eligible for protection under the test, but the law hardly provides the certainty to reduce litigation and encourage recreation. Distinctions like urban or rural, developed or undeveloped, public or private, and economic or residential are not dispositive.

Municipally-owned land adds additional complexity. Although courts generally do not distinguish between public and private land when applying the statute, there is one type of publicly-owned land that is categorically excluded from protection: supervised public parks. This exclusion was carved out in Ferres v. City of New Rochelle, 68 N.Y. 2d 446 (1986), a case involving a bicyclist who was injured when he collided with a chain that was blocking the entrance to a municipal park. There, the Court of Appeals, relying principally on its interpretation of legislative intent, held that “in the case of [a] supervised park … [a] municipality has already held its recreational facility open to the public and needs no encouragement to do so from the prospective immunity offered by the statute.” Id. at 452.

On private land, the court reasoned, there is a “quid pro quo”: permission to use private land and the owner's freedom from liability. In a public park, however, the court reasoned that there is no such exchange because the land is already opened to recreation. This reasoning is suspect though, considering limited municipal budgets and the soaring costs of tort liability. Clearly, there would be more money for park maintenance and construction if municipalities were protected from tort liability, thus furthering the goals of the law.

New Jersey: N.J. Stat. §§2A:42A2-10

The New Jersey recreational use statute (Landowners' Liability Act) also resembles the Model Act, but it has been applied differently. Unlike the New York statute, the New Jersey Statute applies to a list of enumerated sport or recreational activities but also wisely includes “any other outdoor sport, game and recreational activity.” To determine if a non-enumerated action is sporting or recreational, courts examine the plaintiff's purpose for acting in that particular instance. However, this grey area can produce strange or even absurd results. For example, depending on the circumstances, bike riding can either be recreational or a means of transportation. Similarly, a child enthusiastically running across a yard on his way to a game of tag was not yet acting recreationally because the formal game had not begun. Mancuso ex rel. Mancuso v. Klose, 322 N.J. Super. 289 (App. Div. 1999); see also McCaffery v. United States of America, No. 2006 U.S. Dist. LEXIS 37071(D.N.J. June 7, 2006); Cosh v. United States, 2013 U.S. Dist. LEXIS 157362 (D.N.J. Oct. 2013).

Application of the New Jersey statute also differs in regard to what land is protected. The New Jersey statute strangely only applies to “open and expansive rural and semi-rural properties” but not “land located 'in residential and populated neighborhoods.'” Harrison v. Middlesex Water Co., 80 N.J. 391, 397, 400 (1979); Mancuso, 322 N.J. Super. at 295; Toogood v. St. Andrews at Valley Brook Condo. Ass'n, 313 N.J. Super. 418 (App. Div. 1998). This rural-urban distinction has little or no basis in the statutory language, but is premised on narrowly construing statutes limiting tort liability. Thus, identical activities such as sledding or ice skating are treated very differently based on a determination on whether the area is rural or residential, suburban, or urban. Given the particular need for encouraging outdoor recreation among urban youth, this is a distinction that should be reconsidered by the Legislature.

Unlike New York, New Jersey courts do not draw a distinction between publically and privately owned land when applying the New Jersey recreational use statute. Therefore, municipal landowners are subject to the same protections under the statute as private landowners.

Connecticut: Conn. Gen. Stat. §§52-557f-i

Like the New Jersey law, Connecticut's law applies to a non-exhaustive list of “recreational purposes.” The Connecticut Supreme Court has not yet established a firm test for what constitutes a “recreational purpose” outside those listed in the statute, although it has held that “recreational activities naturally arise from the desires and preferences of the person who is enticed away from the troubles and toil of the workday world and who is drawn to the outdoors to partake of an activity that is pleasant for its own sake.” Scrapchansky v. Plainfield, 226 Conn. 446 (1993). The Connecticut statute applies to a broad range of land, which can be natural, developed, or of any size.

Out of these three states, Connecticut has arguably struggled the most in deciding whether its recreational use statute protects municipal landowners. In Manning v. Barenz, 221 Conn. 256 (1992), the Connecticut Supreme Court held that the statute “applies to all land owners—municipal and private.” However, the Court overturned Manning only four years later in Conway v. Town of Wilton, 238 Conn. 653 (1996). That Court emphasized that the statute was only intended to “make the option of opening private land for public recreational use more attractive,” and that “public lands are lands already held open to the public.” Id. Connecticut reversed its position again in 2011 legislatively, amending the law to include municipal landowners. However, the Legislature excluded two categories of publicly-owned land: (1) swimming pools, playing fields or courts, playgrounds, buildings with electrical service, or machinery, and (2) paved public through roads that are open to the public for use by cars.

Conclusion

The problems sought to be remedied by the Model Act and state legislation have only grown more pressing as the nation continues to urbanize and children grow up in front of screens. Despite their laudable goals, recreational use statutes have been interpreted unevenly and often counter-intuitively. Promoting outdoor recreation while not also encouraging dangerous behavior requires a thoughtful balance, but we believe that society benefits by predictably limiting potentially crushing tort liability to both private landowners and cash-strapped municipalities. It is time for state legislatures to modernize recreational use statutes to reflect today's realities and provide a clear, non-arbitrary delineation of what is covered by the laws.

Christine A. Fazio is a partner and co-director in the environmental practice group at Carter Ledyard & Milburn (CLM). Ethan I. Strell is Assistant General Counsel of the National Audubon Society. Anthony Prinzivalli, an associate at CLM, assisted in the preparation of this article.