Rural landowners face choice on recreational use of property

URBANA—An Illinois Supreme Court decision has created a difficult choice for rural landowners who have selectively opened their property for recreational uses such as hunting, fishing, hiking, sledding or snowmobiling, two University of Illinois Extension Agricultural Law Specialists point out.

“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 that would 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.

Their full comments are in the Spring 2004 Illinois Rural Policy Digest published by the Department of Agricultural and Consumer Economics. It can also be read online on the farmdoc Web site 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 backyard, complete with steps, a platform and a luge-like 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 injuries.”

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 any person 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 selective basis.

“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 re-think existing access policies.

“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 simultaneously.

“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.

A draft amendment to the Act that would re-establish some liability protection but also addresses the court’s concern that liability protection should not be too broad is offered by Uchtmann and Endres and included in the full report.

Enjoy The Rock River Times? Help spread the word!