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28 other applicable standard that is the proximate cause of A1. No Duty of the Landowner to Keep the Area Safe a bikeway accident. It should be noted that in some ju- Although the statutory language may vary, a fairly risdictions it has been held that a public entity does not common provision in recreational use statutes is that have a duty and, therefore, is not liable to a bicyclist for an owner, lessee, or occupant of premises owes no duty his or her injuries if the bicyclist as a matter of state or of care to keep the premises safe for entry and use for municipal law was not an intended or permitted user of recreational purposes or to give any warning of a haz- the area where the bicycle accident occurred. ardous (or under some state statutes a dangerous) con- dition.350 The statutes usually state that an owner who SECTION VII. PUBLIC ENTITIES' IMMUNITY permits recreational use does not extend any assurance UNDER RECREATIONAL USE STATUTES FOR that the land is safe for use for any purpose or assume BIKEWAYS any responsibility or liability for an injury to one using the land.351 Recreational use statutes also may provide A. Overview of Recreational Use Statutes 350 Although a public entity may have immunity for al- ALA. CODE 35-15-1 (2009) (also providing in 35-15-22 leged negligence regarding a decision, action, or inac- that there is no duty to inspect the land); see also ALA. CODE 35-15-24(2)(3) (also providing that the statute does not limit tion resulting in a bicycle accident on a roadway or legal liability that otherwise may exist when the owner has bikeway under the state's tort claims act, a public en- actual knowledge that a condition or activity exists that in- tity also may have immunity for accidents on bikeways volves an unreasonable risk of death or serious bodily harm or and other areas under the state's recreational use stat- actual knowledge that the condition or activity is not apparent ute. Since Michigan's enactment of a recreational use to persons using the land) and ALA. CODE 35-15-24 (excluding statute in 1953, nearly every state has enacted recrea- constructive knowledge as a basis for liability); ARK. CODE tional use legislation,344 which typically "alter[s] the 18-11-307 (2009); CAL. CIV. CODE 846 (2009); CONN. GEN. duty of care for recreational providers, including prop- STAT. 52-557g (2009); DEL. CODE tit. 7 5903 (2009); GA. erty owners, lessees, and the occupants of premises."345 CODE 51-3-22 (2009); HAW. REV. STAT. 520-3 (2009); IDAHO However, "most recreational use statutes...fail[] to ade- STAT. 36-1604.4(c) (2009); 745 ILL. COMP. STAT. 65/3 (2009) (stating "or to give warning of a natural or artificial dangerous quately define the types of lands, users and activities condition"); IOWA CODE 461C.3 (2009); KAN. STAT. 58-3203 that trigger the immunity provision...."346 (2009); KY. REV. STAT. 150.645(1) and 411.190(3) (2009); Thus, depending on the circumstances, a recrea- MD. CODE 5-1103 (2009); MINN. STAT. 604A.22 (1), (2) tional use statute may afford immunity to a public en- (2009); MO. STAT. 527.346 (2009) (stating that there is "no tity that designates bikeways. Moreover, as discussed in duty to give any general or specific warning with respect to any Section II, supra, a state tort claims act may immunize natural or artificial condition"); MONT. CODE 70-16-302(1) a public entity in those cases in which the recreational (2009); NEB. REV. STAT. 37-731 (2009); NEV. REV. STAT. use statute does not protect the public entity from li- 41.150(1) (2009); N.H. REV. STAT. 212:34(I) (2009); N.J. STAT. ability. In general, although the states' recreational use ANN. 2A:42A-2(a) (2009); N.Y. GEN. OBLIG. LAW 9-103(1)(a) statutes differ, the state legislatures have granted (2009); N.D. CENTURY CODE 53-08-02 (2009); PA. CONS. STAT. statutory immunity to landowners against claims aris- 477-3 (2009); S.C. CODE 27-3-30 (2009); UTAH CODE ANN. 57-14-3 (2009); W. VA. CODE ANN. 19-25-2 (2009) (applicable ing out of the opening of their property to the public for 347 to a dangerous or hazardous condition); WYO. STAT. ANN. 34- recreational use free of charge. Recreational use stat- 19-102 (2009). 348 utes generally are strictly construed and must be as- 351 ALA. CODE 35-15-23 (2009); ARK. CODE 18-11-305, serted by the defendant public entity as an affirmative 307 (2009); CAL. CIV. CODE 846 (2009); COLO. REV. STAT. defense.349 33-41-103 (2009); CONN. GEN. STAT. 52-557g(b)(1) and (3); DEL. CODE tit. 7 5903 and 5904(1) and (3) (2009); FLA. STAT. 375.251(2)(a)(1) and (3) and 355.251(3)(a)(1)(2) (2009); GA. CODE 51-3-23(1) and (3) (2009); HAW. REV. STAT. 520-4(1) and (3) (2009); IDAHO STAT. 36-1604.4(d)(1) and (3) (2009); 344 Glen Rothstein, Recreational Use Statutes and Private ILL. COMP. STAT. 745 65/4(a) and (3) (2009); IND. CODE 14-22- Landowner Liability: A Critical Examination of Ornelas v. 10-2(e) (2009); IOWA CODE 461C.4(1) and (3) (2009); KAN. Randolph, 15 WHITTIER L. REV. 1123, 1125 (1994), hereinafter STAT. 58-3204(a) and (c) (2009); LA. REV. STAT. 9. cited as "Rothstein." 2795(B)(1)(a) (2009); MD. CODE 5-1104(1) and (3) (2009); 345 Terrence J. Centner, Tort Liability for Sports and Recrea- MINN. STAT. 604A.23(1) and (3) (2009); MO. STAT. tional Activities: Expanding Statutory Immunity for Protected 537.347(1) and (3) (2009); NEB. REV. STAT. 37-732(1) and (3) Classes and Activities, 26 J. LEGIS. 1 at *12 (2000), hereinafter (2009); NEV. REV. STAT. 41.510(2)(a) (2009); N.H. REV. STAT. cited as "Centner." 212:34(II)(a) and (c) (2009); N.J. STAT. ANN. 2A:42A- 346 Rothstein, supra note 344, at 1125126 (footnotes omit- 3(b)(1) and (3) (2009); N.M. STAT. ANN. 17-4-7(A)(1-4) ted). (2009); N.Y. GEN. OBLIG. LAW. 9-103(1)(b)(1) and (3) (2009); 347 N.C. GEN. STAT. 53-08-03(1) and (3) (2009); N.D. CENT. Linville v. City of Janesville, 184 Wis. 2d 705, 714, 516 CODE 53-08-03(1) and (3) (2009); PA. CONS. STAT. 477- N.W.2d 427, 430 (1994). 348 4(1) and (3) (2009); R.I. GEN. LAWS 32-6-3(1) and (3) (2009); Johnson v. Rapid City Softball Ass'n, 514 N.W.2d 693, S.C. CODE 27-3-40(a) and (c) (2009); TENN. CODE ANN. 696 (S.D. 1994). 70-7-103(1) and (3) (2009); UTAH CODE ANN. 57-14-4(1) and 349 Hanley v. State, 837 A.2d 707, 710 (R.I. 2003). (3) (2009); VT. STAT. ANN., tit. 12 5794(5) (2009); W. VA.

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29 that an owner, lessee, occupant, or person in control of owner's liability that otherwise exists for willful or ma- the land does not extend any assurances that the prem- licious failure to warn of or guard against a known dan- ises are safe for any recreational purpose.352 The stat- gerous condition or use of the property.356 Thus, a major- utes often similarly provide that no duty of care or ity of the recreational use statutes do stipulate that ground of liability is created for an injury to a person persons granting the public access to their property for 353 using the property for a recreational purpose. Many of recreational activities may be held liable for their "will- the recreational use statutes make it clear that a rec- ful or malicious failure to guard or warn against a dan- reational user's status while on the property is not that gerous condition, use structure, or activity," or under of an invitee or, under some state statutes, a recrea- some statutes for their "gross negligence," "willful or tional user is neither an invitee nor a licensee.354 Fi- wanton conduct," or "willful, wanton or reckless con- nally, many of the statutes provide that a recreational duct."357 355 user must use due care when using the property. One state's recreational use statute defines gross negligence as A2. Owner's Liability Limited to Willful or Malicious an act or omission: (1) "which when viewed objectively Failure to Warn of or Guard Against a Known from the standpoint of the actor at the time of its occur- Dangerous Condition rence, involves an extreme degree of risk, considering the probability and magnitude of the potential harm to oth- Although recreational use statutes differ to some ex- ers;" and (2) "of which the actor has actual, subjective tent, they generally provide that they do not limit the awareness of the risk involved, but nevertheless proceeds with conscious indifference to the rights, safety, or wel- 358 fare of others." CODE ANN. 19-25-2(a) and (c) (2009); WYO. STAT. ANN. 34-19-103(a)(i) and (iii) (2009). 352 ALA. CODE 35-15-2 (2009); CAL. CIV. CODE 846 (2009); 356 ALA. CODE 35-15-3 (2009); ARIZ. REV. STAT. 33-1551 CONN. GEN. STAT. 5903 (2009). (2009) (stating that "a public or private owner is not liable 353 ALA. CODE 35-15-4 (2009); DEL. CODE tit. 7 5907(1) except for willful, malicious or grossly negligent conduct"); (2009); GA. CODE 51-3-26(1) (2009); HAW. REV. STAT. 520- ARK. CODE 18-11-307 (2009) (stating that an owner's liability 6(1) (2009); IDAHO STAT. 36-1604(g)(1) (2009); 745 ILL. COMP. is not limited for "malicious, but not mere negligent, failure to STAT. 65/7(a) (2009); IOWA CODE 461C.7(1) (2009); KAN. guard or warn against an ultra-hazardous condition...actually STAT. 58-3207(a) (2009); KY. REV. STAT. 411.190(7)(a) known to the owner to be dangerous"); CAL. CIV. CODE 846 (2009); MD. CODE 5-1102(b)(1) (2009); NEB. REV. STAT. 37- (2009); COLO. REV. STAT. 33-41-104(1)(a) and 33-41- 735 (2009); NEV. REV. STAT. 41.150(3)(b) (2009); N.Y. GEN. 105(1)(a) (2009); CONN. GEN. STAT. 52-557h (2009); DEL. OBLIG. LAW 9-103(3) (2009); PA. CONS. STAT. 477-7(1) CODE tit. 7 5906 (2009); FLA. STAT. 375.251(4) (2009) (using (2009); R.I. GEN. LAWS 32-6-6 (2009); S.C. CODE 27-3-70 the terms "deliberate, willful or malicious injury"); GA. CODE (2009); S.D. COD. LAWS 20-9-17 (2009); W. VA. CODE ANN. 51-3-25(1) (2009); HAW. REV. STAT. 520-5(1) (2009); 745 ILL. 19-25-4 (2009); WYO. STAT. ANN. 34-19-106. COMP. STAT. 65/6(a) (2009) (stating "willful or wanton failure 354 ALA. CODE 35-15-2 (2009); ARK. CODE 18-11-305(2) to guard or warn against a dangerous condition"); IND. CODE (2009); CAL. CIV. CODE 846 (2009); COLO. REV. STAT. 33-41- 14-22-10-2(g) (2009) (stating that an owner or occupant "is not 103(1)(b) (2009); CONN. GEN. STAT. 52-557g(2) (2009); DEL. excused for a malicious or illegal act causing injury"); IOWA CODE tit. 7 5904(2) (2009); GA. CODE 51-3-23(2) (2009); CODE 461C.6(1) (2009); KAN. STAT. 58-3206 (2009); KY. HAW. REV. STAT. 520-4(2) (2009); IDAHO STAT. 36-1604(d)(2) REV. STAT. 150.645(1) and 411.190(6)(a) (2009); LA. REV. (2009); 745 ILL. COMP. STAT. 65/4(b) (2009); IOWA CODE STAT. 9.2795(B)(1) (2009); MD. CODE 5-1106 (2009); MASS. 461C.4(2) (2009); KAN. STAT. 58-3204(b) (2009); LA. REV. GEN. LAWS, tit. 21 17C (2009) (stating "absence of willful, STAT. 9.2795B(1)(b) (2009); MD. CODE 5-1104(2) (2009); wanton or reckless conduct"); MICH. COMP. LAWS 324.73301 MINN. STAT. 604A.23(2) (2009); NEB. REV. STAT. 37-732(2) (2009) (stating "gross negligence or willful and wanton miscon- (2009); N.H. REV. STAT. 212:34(II)(b) (2009); N.J. STAT. ANN. duct'); MINN. STAT. 604A.22(1) (2009) (stating no duty "except 2A:42A-3(b)(2) (2009); N.Y. GEN. OBLIG. LAW 9-103(1)(b)(2) to refrain from willfully taking action to cause injury"); MO. (2009); N.D. CENTURY CODE 53-08-03(2) (2009); PA. CONS. STAT. 537.348 (2009) (providing for a different standard with STAT. 477-4(2) (2009); R.I. GEN. LAWS 32-6-3(2) (2009); S.C. respect to guarding or warning against a dangerous condition CODE 27-3-40(b) (2009); S.D. COD. LAWS 20-9-14(2) (2009); versus an ultra hazardous condition); MONT. CODE 70-16- TENN. CODE ANN. 70-7-103(2) (2009); UTAH CODE ANN. 57- 302(1) (2009); NEB. REV. STAT. 37-734 (2009); NEV. REV. 14-4(2) (2009); W. VA. CODE ANN. 19-25-2(b) (2009); WYO. STAT. 41.150(3)(a)(1) (2009); N.H. REV. STAT. 212:34(III)(a) STAT. ANN. 34-19-103(a)(ii) (2009). (2009); N.J. STAT. ANN. 2A:42A-4(a) (2009); N.Y. GEN. OBLIG. 355 ALA. CODE 35-15-25 (2009); ARK. CODE 18-11-303(2) LAW 9-103(2) (2009); N.D. CENTURY CODE 53-08-05(1) (2009); COLO. REV. STAT. 33-41-105(1)(b) (2009); CONN. GEN. (2009); R.I. GEN. LAWS 32-6-5 (2009); S.C. CODE 27-3-60(a) STAT. 52-557i (2009); DEL. CODE tit. 7 5907(2) (2009); GA. (2009); TENN. CODE ANN. 70-7-104(1) (2009); UTAH CODE CODE 51-3-26(2) (2009); HAW. REV. STAT. 520-6(2) (2009); ANN. 57-14-6(1)(a) (2009); VT. STAT. ANN., tit. 12 5793(a) IDAHO STAT. 36.1604(g)(2) (2009); 745 ILL. COMP. STAT. (2000) (willful or wanton misconduct of the owner); W. VA. 65/7(b) (2009); IOWA CODE 461C.7(2) (2009); KAN. STAT. 58- CODE ANN. 19-25-4 (2009) (stating "deliberate, willful or ma- 3207(b) (2009); KY. REV. STAT. 411.190(7)(b) (2009); LA. REV. licious infliction of injury); WYO. STAT. ANN. 34-19-105(a)(i) STAT. 9.2795D (2009); MD. CODE 5-1102(b)(2) (2009); MINN. (2009). 357 STAT. 604A.26 (2009); NEB. REV. STAT. 37-736 (2009); N.D. Centner, supra note 345, at *13. 358 CENTURY CODE 53-08-06 (2009); VT. STAT. ANN. tit. 12 Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653, 5794(a)(6) (2009); W.VA. CODE ANN. 19-25-4 (2009). at 660 (quoting TEX. CIV. PRAC. & REM. CODE 41.001(11)).

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30 In Dinelli v. County of Lake,359 the court noted that will go to trial."367 Indeed, the question of whether a the willful-and-wanton-conduct exception to immunity landowner has committed willful misconduct is often a under the Illinois recreational use statute meant a question of fact for the jury,368 but, as another source "course of action which shows an actual or deliberate points out, "[t]he defense provided by the recreational intention to cause harm or which, if not intentional, use statute means that causes of action in negligence shows an utter indifference to or conscious disregard for can be dismissed, and in some cases, causes of action in the safety of others or their property."360 However, "[a] gross negligence also may be dismissed."369 public entity may be found to have engaged in willful Depending on the language of a particular recrea- and wanton conduct only if it has been informed of a tional use statute, some courts have held that a public dangerous condition, knew others had been injured be- entity is not liable for a bikeway-related claim. In cause of the condition, or if it intentionally removed a Stephen F. Austin State University, supra, the bicyclist safety device or feature from property used for recrea- who was knocked off her bicycle on a bike trail by the tional purposes."361 university's water sprinkler alleged "that SFA knew In Dinelli, the court ruled the trial court properly that the use of the sprinkler in the manner and at the granted a summary judgment to the county on the time of said use posed a risk of serious injury to others, plaintiffs' claim that the county had negligently de- including the Plaintiff, but that SFA was grossly negli- signed and maintained a midblock bicycle trail cross- gent in ignoring and creating that risk."370 The court walk. The court concluded that "the County's `nonac- stated that the recreational use statute did "not fore- tion' did not rise to the level of willful and wanton close premises defect claims, but rather limits the land- conduct showing an utter indifference to the safety of owner's liability by raising the plaintiff's burden of others," nor did the "County's failure to conduct traffic proof to that of gross negligence, malicious intent, or studies or utilize traffic control devices...rise to the bad faith."371 362 level of willful and wanton conduct." The court held that Flynn's allegations were conclu- It has been held that a willful failure to guard or sory and insufficient to rebut SFA's motion to dismiss. warn requires that "[a] defendant must have actual Flynn's allegations failed knowledge of the `specific dangers inherent in those to demonstrate either that the sprinkler presented an ex- conditions or activities.'"363 In Ali v. City of Boston,364 the treme risk, that SFA was aware of the risk, or that SFA court defined willful, wanton, or reckless conduct under was consciously indifferent to the sprinkler's capacity to the Massachusetts statute as that conduct involving inflict serious injury. Moreover, Flynn concedes that she an intentional or unreasonable disregard of a risk that was aware of the sprinkler before she encountered it, and presents a high degree of probability that substantial as we have already mentioned, the recreational use stat- harm will result to another.... The risk of death or grave ute does not obligate a landowner to warn of known condi- 372 bodily injury must be known or reasonably apparent, and tions. the harm must be a probable consequence of the defen- However, in other jurisdictions a public entity may dant's election to run that risk or of his failure reasonably not be immunized by a recreational use statute if "the 365 to recognize it. injured person can show that the defendant knew that a In Ali, the court, which held that the plaintiff's claim dangerous condition existed."373 For example, in Payne 374 was barred by the recreational use statute, rejected the v. City of Bellevue, involving Washington's recrea- plaintiff's alternative claim with respect to a bike trail tional use statute, the plaintiff was injured when his in a city park "that the city's conduct in erecting [a] bicycle hit a hole at the edge of a public trail owned and gate without lights, signs, or other warnings constituted maintained by the city where the city had not posted a 375 willful, wanton, or reckless conduct."366 sign warning of the danger. The court ruled that there In states in which the courts are reluctant to grant a was a factual question regarding whether the city knew summary judgment, landowners, however, may be con- cerned that a "plaintiff need only allege willful or mali- cious conduct on the part of the landowner and the case 367 Cardwell, supra note 1, at 25657. 368 Stokka v. Cass County Elec. Coop., 373 N.W.2d 911, 915 16 (N.D. 1985). 359 294 Ill. App. 3d 876, 691 N.E.2d 394 (Ill. App. 2d Dist. 369 Centner, supra note 345, at *1214. 1998). 370 Stephen F. Austin State Univ. v. Flynn, 228 S.W.3d 653 360 Id. at 883, 691 N.E.2d at 399 (citing 745 ILL. COMP. STAT. at 659 (internal quotation marks omitted). ANN. 10/1--210 (West 1996)). 371 Id. 361 Id. at 884, 691 N.E.2d at 399 (citation omitted). 372 Id. at 660 (emphasis supplied). 362 Id. at 885, 691 N.E.2d at 399 (citation omitted). 373 Heather L. Foss, Case Comment: Torts--Municipal Cor- 363 Blake v. United States, 1998 U.S. Dist. LEXIS 1475, at porations: Immunity for Injuries Suffered on Any Municipali- *23 (E.D. Pa. 1998) (Unrept.). ties' Public Land Allowed by the North Dakota Supreme Court, 364 441 Mass. 233, 804 N.E.2d 927 (Mass. 2004). 79 N. DAK. L. REV. 529, 539. 365 374 Id. at 238, 239, 804 N.E.2d at 932 (internal quotation 1997 Wash. App. LEXIS 1401 (Wash. Ct. App. 1997) (Un- marks omitted) (citation omitted). rept.). 366 375 Id. at 238, 804 N.E.2d at 931. Id., 1997 Wash. App. LEXIS 1401 at *1.