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31 of a dangerous, artificial, and latent condition on its plied, it was by no means clear that the defendants land but did not post a warning.376 were not liable for willful, wanton, or reckless con- It is possible that because of the nature of a bikeway duct.388 The basis for the plaintiff's claim was not the or bike trail that the state recreational use statute does defendants' inaction but the defendants' affirmative not apply to exonerate a public entity. In Goodwin v. conduct in leaving obstacles on the path.389 Carbondale Park District,377 the plaintiff's injury oc- In sum, depending on the conditions and the appli- curred as a result of colliding with a tree that had fallen cable recreational use statute, a public entity may have across a designated bike path in a city park. The court immunity for accidents on bikeways and in other areas held that the trial court properly dismissed the plain- under the state's recreational use immunity statute. tiff's first count against the park district "because the Although the statutes vary, a fairly common provision property on which plaintiff was injured was `intended or is that an owner, lessee, or occupant of premises owes permitted to be used for recreational purposes.'"378 How- no duty of care to keep the premises safe for entry and ever, the court held that the dismissal of the plaintiff's use for recreational purposes or to give any warning of second count was improper. A provision of the tort im- a hazardous or dangerous condition. Another fairly munity act, Section 3-107(b), "provide[d] for immunity common provision is that owners, lessees, and occu- for both ordinary negligence and willful and wanton pants may be liable only for a willful or malicious fail- misconduct `for an injury caused by a condition of...(b) ure to warn or guard against a known dangerous condi- Any hiking, riding, fishing or hunting trail.'"379 The tion or use of the property. court held that the trial court erred in dismissing the Guidance second count because "the paved bike path located in a As discussed previously, if a recreational use statute developed city park" did not "constitute[] a `riding is applicable it may provide a public entity with immu- 380 trail'...." Thus, the trial court "erred in dismissing nity for a bikeway-related claim that the public entity count II of plaintiff's complaint sounding in willful and would not have had under an applicable tort claims act. wanton negligence."381 As explained hereafter, a public entity may be able to In another case in which the plaintiff was injured in rely on a recreational use statute even if the bicyclist a bicycle accident on a designated bike path, Graney v. was not engaged in a recreational use of the bikeway or Metropolitan District Commission,382 the district's main- area at the time of the accident giving rise to the claim tenance employees occasionally had to leave vehicles or against a public entity. other items on the path while conducting maintenance or repairs.383 The plaintiff used the path regularly be- A3. Recovery of Attorney's Fees cause his bicycle was his principal mode of transporta- One state's recreational use statute provides that the tion.384 The Massachusetts recreational use statute prevailing party in a civil action may recover reason- (General Laws, Chapter 21, Section 17C) protected only able attorney's fees.390 an "owner of land" and required that a plaintiff have used the land for recreational purposes.385 The court B. Whether Public Entities Are Owners Under held that the defendants had not sustained the burden Recreational Use Statutes needed for a summary judgment by showing that they A threshold issue is whether a recreational use stat- were owners for purposes of the statute.386 Moreover, ute applies and therefore immunizes the conduct of the defendants had left a pile of mulch on the path for public entities when sued for alleged negligence for ac- about a week prior to the accident that completely ob- cidents on bikeways. Although a few statutes exclude structed the path; at night the plaintiff could not see 391 387 governmental owners, some of the statutes clearly the pile, which was in the middle of the path. The provide that an owner includes any public entity, in- court held that even if the recreational use statute ap- cluding any agency of the federal or state government or a political subdivision of the state.392 Land also may 376 Id. at *12. 377 268 Ill. App. 3d 489, 644 N.E.2d 512 (Ill. App. 5th Dist. 388 Id. at *20. 1994). 389 378 Id. Id. at 491, 644 N.E.2d at 513 (citation omitted). 390 379 COLO. REV. STAT. 33-41-105.5 (2009). Id. (quoting Local Government and Governmental Em- 391 See, e.g., N.C. GEN. STAT. 38A-2(4) (2009) (defining ployees Tort Immunity Act 3-107(b)). 380 owner as an individual or nongovernmental entity); OHIO REV. Id. at 492, 644 N.E.2d at 514. CODE 1533.181 (2009) (applicable to privately owned, non- 381 Id. at 494, 644 N.E.2d at 515. residential premises); R.I. GEN. LAWS 32-6-2(3) (2009) (appli- 382 2001 Mass. Super. LEXIS 352 (Mass. Super. Ct. 2001) cable to a private owner). (Unrept.). 392 ALA. CODE 35-15-21; ARK. CODE 33-1551 (2009) ("pub- 383 Id., 2001 Mass. Super. LEXIS at *4. lic or private owner"); COLO. REV. STAT. 33-41-102(4.5) 384 Id. (2009); FLA. STAT. 375.251(2)(a) (2009) (refers only to an 385 owner or lessee of a park area); 745 ILL. COMP. STAT. 65/2 Id. at *12. 386 (2009) (stating that the term "owner" includes the State and its Id. political subdivisions); IND. CODE 14-22-10-2(a) and (c) 387 Id. at *4, 5. (2009) (defining governmental entity to include the United

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32 be defined under the recreational use statutes to in- Thus, by its terms the recreational use statute in at clude roads.393 Regardless of whether the term owner is least 15 states applies to public entities.395 However, in defined specifically to include public entities, the stat- another 19 states the courts have construed the state utes typically define an owner to include the possessor recreational use statute to apply to public entities.396 of a fee interest, a lessee, an occupant, or a person in For example, in 2007 a California court held that a city control of the premises.394 is immune from accidents on a bikeway in a public park owned by the local municipality.397 The court held that the plaintiff's "claim that trail immunity does not apply because his accident occurred outside the confines of States, the State, counties, cities, towns, and townships having the bikeway is likewise without merit," because a a fee interest in, being a tenant, lessee, or an occupant of or in "gateway to or from a bike path is patently an integral control of a tract of land); LA. REV. STAT. 2795E.(2)(a) (2009) part of the bike path."398 (applying to public parks owned, leased, or managed by the As discussed in Section VII.C.3, infra, the courts State or its political subdivisions); MD. CODE 1105.1(1) (2009) generally are not concerned with how an injured party (stating that the provisions of 5-1103 and 5-1104 are appli- was using the property at the time of the injury.399 In cable to any unit of local government as an owner of land); 400 MASS. GEN. LAWS, tit. 21 17C(b) (2009) (providing that the Boaldin v. University of Kansas, the Kansas Supreme term person includes "any governmental body, agency, or in- Court held that recreational use immunity protected strumentality"); MO. STAT. 537.345(3) (2009) (stating that an the University of Kansas from a claim by a student who owner includes a governmental agency); MONT. CODE 70-16- was injured while sledding on a part of university prop- 302(2)(c) and (d) (2009) (providing that a landowner includes a erty.401 First, the court held that "[u]nder the plain and governmental or quasi-governmental entity and that property unambiguous wording of the statute, a governmental includes roads); N.H. REV. STAT. 508:14(I) (2009) (including entity which permits public property to be used as a the state or any political subdivision); N.D. CENTURY CODE park, playground, or open area for recreational pur- 53-08-01(2) (2009) (public and private land); OR. REV. STAT. poses is immune from damages arising from negli- 105.688 (2009) (all public and private land); TENN. CODE ANN. gence."402 Second, in response to the plaintiff's argument 70-7-101(2)(A) (2009) (stating that "landowner" includes any governmental entity); TEX. CIV. PRAC. & REM. CODE that the recreational use statute only applied to mu- 75.003(e) (2009) (chapter applicable to governmental units); nicipalities, the court looked to the state's tort claims UTAH CODE ANN. 57-14-2(2) (2009) (public or private land); act that defined a governmental entity to mean the WASH. REV. CODE 4.24-210(1) and (2) (2009) (public or pri- state or a municipality.403 Third, in response to the vate owners). plaintiff's argument that the university's hill where 393 ARIZ. REV. STAT. 33-1551(C)(3) (2009); ARK. CODE 18- sledding traditionally occurred was not a recreational 11-302(2) (2009); COLO. REV. STAT. 33-41-102(2) (2009); area within the meaning of the recreational use statute, CONN. GEN. STAT. 52-557f(2) (2009); DEL. CODE tit. 7 the court held that it was not necessary under the stat- 5902(1) (2009); GA. CODE 51-3-21(2) (2009); HAW. REV. STAT. ute for the area to have been designated as a recrea- 520-2 (2009); IDAHO STAT. 36-1604(b)(2) (2009); 745 ILL. tional area, only that it was open to recreational use.404 COMP. STAT. 65/2(a) (2009); KAN. STAT. 58-3202(a) (2009); A local tort claims statute may include an exception KY. REV. STAT. 411.190(1)(a) (2009); LA. REV. STAT. from liability for governmental entities providing rec- 2795(A)(1) (2009); MD. CODE 5-1101(d)(1) (2009); MINN. STAT. ANN. 604A-21(3) (2009); MONT. CODE ANN. 70-16- 302(2)(d) (2009); NEB. STAT. ANN. 37-729(1) (2009); N.D. 395 Alabama, Arkansas, Colorado, Illinois, Indiana, Mary- CENT. CODE 53-08-01(2) (2009); OR. REV. STAT. ANN. land, Massachusetts, Montana, New Hampshire, North Da- 105.688(1)(b) (2009); PA. CONSOL. STAT. 477-2(1) (2009); R.I. kota, Oregon, Tennessee, Texas, Utah, and Washington. GEN. LAWS 32-6-2(2) (2009); S.C. CODE 27-3-20(a) (2009); 396 TEX. CIV. PRAC. & REM. CODE 75.001(2) (2009); UTAH CODE Arizona, California, Connecticut, Georgia, Kansas, Ken- 19-25-5(2) (2009); WYO. STAT. 34-19-101(a)(i) (2009). tucky, Louisiana, Maine, Michigan, Minnesota, New Mexico, 394 New York, Nevada, Ohio, Pennsylvania, South Carolina, South ARK. CODE 18-11-302(3) (2009); COLO. REV. STAT. 33- Dakota, Virginia, and Wisconsin. Robin C. Miller, Annotation, 41-102 (2009); CONN. GEN. STAT. 52-557f (2009); GA. CODE Effect of Statute Limiting Landowner's Liability for Personal 51-3-21(3) (2009); HAW. REV. STAT. 520-2 (2009); IDAHO STAT. Injury to Recreational User, 47 A.L.R. 4th 262 (1986) and 2009 36-1604(3) (2009); 745 ILL. COMP. STAT. 65/2(b) (2009) (owner Supp. includes the State and its political subdivisions); IND. CODE 397 14-22-10-2(a)(c) (2009); IOWA CODE 461C.2(2) (2009); KAN. Prokop v. City of L.A., 150 Cal. App. 4th 1332, 59 Cal. STAT. 58-3202(b) (2009); KY. REV. STAT. 150.645(1) and Rptr. 3d 355 (Cal. App. 4th Dist. 2007), review denied, 2007 411.190 (2009); LA. REV. STAT. 9.2795(2) (2009); MD. CODE Cal. LEXIS 8791 (Cal., Aug. 15, 2007). 398 5-1101(d)(1) and (2)(e) (2009) (providing that land includes Id. at 1342, 59 Cal. Rptr. 3d at 362. 399 roads, paths, and trails and that "owner" means the owner of Will Wohlford, Comment: The Recreational Use Immunity any estate or other interest in real property); MASS. GEN. of the Kansas Tort Claims Act: An Exception or the Rule?, 52 LAWS, tit. 21 17C(a) (2009) (statute applying to "any person KAN. L. REV. 211, 230 (2003). having an interest in land"); MINN. STAT. 604A.21(4) (2009); 400 242 Kan. 288, 747 P.2d 811 (Kan. 1987). NEB. REV. STAT. 37-729(2) (2009); N.J. STAT. ANN. 2A:42A- 401 Id. at 28889, 747 P.2d at 812. 3(a) (2009); N.M. Stat. Ann. 17-4-7(A) (2009); N.Y. GEN. 402 OBLIG. LAW 9-103(1)(a) (2009); PA. CONS. STAT. 477-2(1) Id. at 291, 747 P.2d at 813. 403 (2009); R.I. GEN. LAWS 32-6-2(3) (2009); S.D. COD. LAWS 20- Id. at 291, 747 P.2d at 814. 404 9-12(4) (2009); WYO. STAT. 34-19-101(a)(ii) (2009). Id. at 29091, 747 P.2d at 813.