Recreational Use Statutes and Other Legal Topics Related to Trails

Transcription

1 Recreational Use Statutes and Other Legal Topics Related to Trails George Kimberly Land Acquisition Director and General Counsel Catawba Lands Conservancy December 5, 2013

2 Overview I. NC recreational use statutes and representative cases II. SC recreational use statutes and representative cases III. Land acquisition issues 2

3 NC Recreational Use Statutes N.C.G.S. 38A-1. Purpose The purpose of this Chapter is to encourage owners of land to make land and water areas available to the public at no cost for educational and recreational purposes by limiting the liability of the owner to persons entering the land for those purposes. 3

4 38A-4. Limitation of liability (a) Except as specifically recognized by or provided for in this Chapter, an owner of land who either directly or indirectly invites or permits without charge any person to use such land for educational or recreational purposes owes the person the same duty of care that he owes a trespasser, except nothing in this Chapter shall be construed to limit or nullify the doctrine of attractive nuisance and the owner shall inform direct invitees of artificial or unusual hazards of which the owner has actual knowledge. This section does not apply to an owner who invites or permits any person to use land for a purpose for which the land is regularly used and for which a price or fee is usually charged even if it is not charged in that instance, or to an owner whose purpose in extending an invitation or granting permission is to promote a commercial enterprise. (b) Nothing in this section shall be construed to conflict with or render ineffectual a liability release, indemnification, assumption, or acknowledgment of risk agreement between the landowner and a person who uses the land for educational or recreational purposes. (Amended- August 1, 2013) 4

5 38A-2. Definitions The following definitions shall apply throughout this Chapter, unless otherwise specified: (1) Charge means a price or fee asked for services, entertainment, recreation performed, or products offered for sale on land or in return for an invitation or permission to enter upon land, except as otherwise excluded in this Chapter. (2) Educational purpose means any activity undertaken as part of a formal or informal educational program, and viewing historical, natural, archaeological, or scientific sites. (3) Land means real property, land, and water, but does not mean a dwelling and the property immediately adjacent to and surrounding such dwelling that is generally used for activities associated with occupancy of the dwelling as a living space. (4) Owner means any individual or nongovernmental legal entity that has any fee, leasehold interest, or legal possession, and any employee or agent of such individual or nongovernmental legal entity. (5) Recreational purpose means any activity undertaken for recreation, exercise, education, relaxation, refreshment, diversion, or pleasure or sport, including equestrian recreation as defined in G.S. 99E-1. 5

6 38A-3. Exclusions For purposes of this Chapter, the term charge does not include: (1) Any contribution in kind, services or cash contributed by a person, legal entity, nonprofit organization, or governmental entity other than the owner, whether or not sanctioned or solicited by the owner, the purpose of which is to (i) remedy damage to land caused by educational or recreational use; (ii) provide warning of hazards on, or remove hazards from, land used for educational or recreational purposes; or (iii) pay expenses related to the use of land for a recreational or educational purpose. (2) Unless otherwise agreed in writing or otherwise provided by the State or federal tax codes, any property tax abatement or relief received by the owner from the State or local taxing authority in exchange for the owner's agreement to open the land for educational or recreational purposes. (3) Dues or fees charged by an individual, group, club, partnership, corporation, or governmental entity sponsoring the educational or recreational use when (i) the sponsor is operating as a nonprofit or in a nonprofit capacity and (ii) the dues or fees are used to pay expenses relating to the educational or recreational use or to raise funds to support the sponsor's mission. (Amended August, 2013) 6

7 1998 NC supreme court eliminates invitee, licensee classification Lawful visitor or trespasser Duty owed to lawful visitorreasonable care Duty owed to trespasser- refrain from willful or wanton infliction of injury 7

8 To constitute willful injury there must be actual knowledge, or that which the law deems to be the equivalent of actual knowledge, of the peril to be apprehended, coupled with a design, purpose, or intent to do wrong and inflict injury. A wanton act is one which is performed intentionally with a reckless indifference to injurious consequences probable to result therefrom. Ordinary negligence has as its basis that a person charged with negligent conduct should have known the probable consequences of his act. Wanton and willful negligence rests on the assumption that he knew the probable consequences, but was recklessly, wantonly or intentionally indifferent to the results. Wagoner v. North Carolina Railroad Co., 238 N.C. 162, 168, 77 S.E.2d 701, 706 (1953). 8

9 Exceptions: a. Owner (fee, leasehold interest, or legal possession). Is an easement holder an owner? Easement isn t a possessory interest. No NC cases and other jurisdictions divided. b. No charge or usually charged c. Educational or recreational purposes d. Attractive nuisance- under all the facts and circumstances should the landowner have contemplated that children would be attracted or allured to go on the property and sustain injury? e. Direct invitees-duty to inform of artificial or unusual hazards of which the owner has actual knowledge.(who is a direct invitee??) f. Commercial enterprise 9

10 North Carolina Trail System Statutes 113A-84. Declaration of policy and purpose (a) In order to provide for the ever-increasing outdoor recreation needs of an expanded population and in order to promote public access to, travel within, and enjoyment and appreciation of the outdoor, natural and remote areas of the State, trails should be established in natural, scenic areas of the State, and in and near urban areas. (b) The purpose of this Article is to provide the means for attaining these objectives by instituting a State system of scenic and recreation trails, coordinated with and complemented by existing and future local trail segments or systems, and by prescribing the methods by which, and standards according to which, components may be added to the State trails system. 10

11 113A-95. Trail use liability (a) Any person, as an owner, lessee, occupant, or otherwise in control of land, who allows without compensation another person to use the land for designated trail or other public trail purposes or to construct, maintain, or cause to be constructed or maintained a designated trail or other public trail owes the person the same duty of care he owes a trespasser. (b) Any person who without compensation has constructed, maintained, or caused to be constructed or maintained a designated trail or other public trail pursuant to a written agreement with any person who is an owner, lessee, occupant, or otherwise in control of land on which a trail is located shall owe a person using the trail the same duty of care owed a trespasser. 11

12 113A-85. Definitions Except as otherwise required by context, the following terms when used in this Article shall be construed respectively to mean: (6) Trail means: a. Park trail.--a trail designated and managed as a unit of the North Carolina State Parks System under Article 2C of Chapter 113 of the General Statutes. b. Designated trail.--a trail designated by the Secretary pursuant to this Article as a component of the State trails system and that is managed by another governmental agency or by a corporation listed with the Secretary of State. c. A State scenic trail, State recreation trail, or State connecting trail under G.S. 113A-86 when the intended primary use of the trail is to serve as a park trail or designated trail. d. Any other trail that is open to the public and that the owner, lessee, occupant, or person otherwise in control of the land on which the trail is located allows to be used as a trail without compensation, including a trail that is not designated by the Secretary as a component of the State trails system. 12

13 NC Trail System Act Duty-same as to a trespasser (refrain from willful or wanton infliction of injury) Stronger protection than Rec. Use: (1) no exceptions for attractive nuisance or direct invitee (2) applies to owner, lessee, occupant or one otherwise in control of the land 13

14 Summaries: NC Recreational Use Statute- 1. An owner of land who allows another to use the land for recreational uses without charging them fee must refrain from willful and wanton acts that could cause injury to the user. 2. However, if the user is a direct invitee, the owner must warn the user of unusual hazards of which the owner has actual knowledge. 3. Attractive nuisance doctrine exception. 14

15 NC Trail System Statutes- 1.Anyone in control of land who allows another to use the land for a trail and doesn t charge them a fee must refrain from willful and wanton acts that could cause injury to those using the trail. 2. Anyone who constructs or maintains a trail on land controlled by another, without compensation and pursuant to a written agreement, must refrain from willful and wanton acts that could cause injury to those using the trail. 15

16 Other potential liability defenses: (1) General rule-landowner relinquish control to easement holder then also relinquishes potential liability associated with maintenance of property (draftingconfer control and a maintenance to holder) (2) Contributory negligence and assumption of risk (3) Sovereign/Governmental Immunity- Suits against the State, its agencies, and its officers for alleged tortious acts can be maintained only to the extent authorized by the Tort Claims Act, and that Act authorizes recovery only for negligent torts; intentional torts committed by agents and officers of the State are not compensable under the Tort Claims Act. White v. Trew, 2011, 720 S.E.2d 713, review allowed 722 S.E.2d 594, reversed 366 N.C. 360, 736 S.E.2d 166. Local governments? 16

17 NC Cases Johnston, et ux v. United States, 2002 WL (W.D.N.C.). Plaintiff, a visitor to the Pisgah National Forest, was injured when she fell while descending a stone stairway leading to the recreational area. Plaintiff alleged that defendant was negligent by failing to clear vegetation that concealed a hole near the steps. Defendant charged no user fee for access. Defendant s motion for summary judgment was allowed. The Court reasoned that under NC s recreational use statute, defendant owed plaintiff the same duty as would be owed a trespasser, namely to refrain from willful and wanton infliction of injury. If plaintiff were a direct invitee defendant would owe a higher duty of care to inform of artificial or unusual hazards of which the defendant as actual knowledge. Key points: 1. The defendant made a persuasive argument that signage directing the public to a recreation area would not render plaintiff a direct invitee. 2. There was no allegation or proof that defendant had actual knowledge of any hidden, artificial or unusual dangers related to the stairway. 3. Even if plaintiff s claim were not barred by the recreational use statute, her own contributory negligence precluded her claim as a matter of law. Plaintiff failed to watch where she was stepping and failed to use the handrail. 17

18 Purkey v. United States, 299 F. Supp.539 (W.D.N.C.) 2004). Plaintiff s decedent was a passenger in a vehicle travelling on a public road within the Great Smoky Mountains National Park. The decedent was killed when the vehicle drove onto the shoulder to avoid a fallen tree, then slid and rolled down an embankment after the shoulder gave way. Plaintiff alleged that the defendant was negligent for failing to inspect and maintain the road and adjacent shoulder, and for negligence in the design, construction and drainage of the road. Defendant s motion to dismiss was allowed. 18

19 Key points: 1. Court rejected plaintiff s arguments that decedent was killed on a public road and was not engaged in recreation. The court reasoned that the threshold inquiry in applying the recreational use statute is whether the plaintiff's purpose in entering the property was recreational. The statutory definitions of real property and land would include the roads within a recreational use area, and using the roads made the decedent a recreational user. 2. The Court disagreed with Plaintiff's assertion that because the road was used to access the National Forest, all users thereof became direct invitees instead of recreational users. 3. The court recounted the NC law on willful and wanton acts: to constitute willful injury there must be actual knowledge, or that which the law deems to be the equivalent of actual knowledge, of the peril to be apprehended, coupled with a design, purpose, or intent to do wrong and inflict injury. A wanton act is one which is performed intentionally with a reckless indifference to injurious consequences probable to result therefrom. Ordinary negligence has as its basis that a person charged with negligent conduct should have known the probable consequences of his act. Wanton and willful negligence rests on the assumption that he knew the probable consequences, but was recklessly, wantonly or intentionally indifferent to the results. 4. The defendant owed no duty to inform plaintiff of hazardous conditions by posting warning signs. 19

20 Fesmire v. United States, 9 Fed. Appx. 212, 2001 WL (C. A. 4 (N.C.)). Plaintiff s decedent was killed while riding as a passenger in vehicle that accidently proceeded down a steep boat ramp located on land owned by the defendant. The vehicle drove into the ocean and plaintiff s decedent drowned. The accident occurred at night and plaintiff alleged that defendant was aware of another similar occurrence in the past. Plaintiff alleged that defendant created a dangerous condition by leaving open a gate accessing the ramp and by failing to warn of the danger by posting signs and lights. Summary judgment was affirmed for the defendant. 20

21 Key points: 1. The decedent was a recreational user and not a direct invitee. 2. Defendant s failure to close the gate accessing the ramp, and failure to post warning signs and lights, did not amount to wanton conduct. Under NC law a wrongful omission or failure to act (failing to close the gate or post warning signs and lights) is passive conduct, and no reported cases in NC hold that the passive conduct of a landowner is deemed to be an act performed intentionally with a reckless indifference to the injuries likely to result. 21

22 Briscoe v. Lighting and Power- A child who enters the property of another with no right to there (permission, invitation or license) would be deemed a trespasser as an adult. However, if the child enters the property to satisfy a childish curiosity or propensity excited by the character of the structure or other conditions, and is injured by failure of the owner to properly guard or cover the dangerous condition, the owner is liable provided that the owner should have contemplated that children would be attracted to allured to go upon the premises and sustain injury. 22

23 NC hypothetical (1): Greenacre County buys land from Blackstone to build a public trail. After buying the land, Greenacre reaches an oral agreement with Bump in the Road Trail Builders to construct and maintain the trail for $100. On the day of the grand opening of the new trail Mr. Magoo, who has very poor eyesight and refuses to wear glasses, slips and falls on a discarded banana peel while enjoying a stroll. Magoo claims to have suffered extensive injuries and sues Greenacre, Blackstone and Bump in the Road to recover. What is the likely outcome? 23

24 NC Hypothetical (2): Trails by the Mile (TBM) is a nonprofit organization that acquires land and builds publically accessible trails. TBM owns land in Greenacre County that has a trail and a dangerous pond. Dennis Menace, a six year old boy, lives in a residential subdivision adjacent to TBM s land. Dennis has long been curious about whether frogs live in the pond and ventures over to see for himself. Dennis is injured when he slips on the steep pond bank and his parents sue TBM to recover for his injures. What is the likely outcome? 24

25 SC Recreational Use Statutes Declaration of purpose The purpose of this chapter is to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes. 25

26 Duty of care. Except as specifically recognized by or provided in , an owner of land owes no duty of care to keep the premises safe for entry or use by persons who have sought and obtained his permission to use it for recreational purposes or to give any warning of a dangerous condition, use, structure, or activity on such premises to such persons entering for such purposes. 26

27 Effect of permission to use property for recreational purposes. Except as specifically recognized by or provided in , an owner of land who permits without charge any person having sought such permission to use such property for recreational purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose. (b) Confer upon such person the legal status of an invitee or licensee to whom a duty of care is owed. (c) Assume responsibility for or incur liability for any injury to person or property caused by an act of omission of such persons. 27

28 Certain liability not limited. Nothing in this chapter limits in any way any liability which otherwise exists: (a) For grossly negligent, willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity. (b) For injury suffered in any case where the owner of land charges persons who enter or go on the land for the recreational use thereof, except that in the case of land leased to the State or a subdivision thereof, any consideration received by the owner for such lease shall not be deemed a charge within the meaning of this section. 28

29 Definitions. As used in this chapter: (a) Land means land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty. (b) Owner means the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises. (c) Recreational purpose includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, summer and winter sports and viewing or enjoying historical, archaeological, scenic, or scientific sites. (d) Charge means the admission price or fee asked in return for invitation or permission to enter or go upon the land. (e) Persons means individuals regardless of age. 29

30 Application of and to land leased to State or political subdivisions Unless otherwise agreed in writing, the provisions of and shall be deemed applicable to the duties and liability of an owner of land leased to the State or any subdivision thereof for recreational purposes. 30

31 Construction. Nothing in this chapter shall be construed to: (a) Create a duty of care or ground of liability for injury to persons or property. (b) Relieve any person using the land of another for recreational purposes from any obligation which he may have in the absence of this chapter to exercise care in his use of such land and in his activities thereon, or from the legal consequences of failure to employ such care. 31

32 Summary: SC Recreational Use Statute- One who is in control of land and gives permission to another to use it for recreational purposes and doesn t charge them a fee must refrain from grossly negligent conduct that could cause the user injury. 32

33 SC Cases Brooks v. Northwood Little League, Inc.- Gross negligence is defined as the intentional, conscious failure to do something which one ought to do. Clyburn v Sumter County- Gross negligence is the failure to exercise even slight care. Chrisley v. United States- Landowner who did not post signs to warn fisherman of the danger of falling rocks along a shoreline was negligent but protected from liability (no gross negligence). 33

34 Corbett v. City of Myrtle Beach Plaintiff s husband drowned while swimming at public beach owned by the City. The City had contracted with a separate entity to provide lifeguarding services at the beach. Although the City was immune from liability under the Recreational Use Statue (owned the property and no admission charged), the contractor was not. The contractor did not occupy or control the premises with the purview of the statute. 34

35 Cole v. SCE&G Plaintiff s son drowned in lake owned by SCE&G and plaintiff claimed SCE&G was grossly negligent for failing to provide lifeguards, life-saving equipment and warning signs. Court ruled defendant not liable under the recreational use statues. The parking fee charged by SCE&G did not constitute a fee because the payment was not required to access the property. Requiring the defendant to provide recreational safety features, such as lifeguards or life saving equipment, would exceed the slight care standard for gross negligence. 35

36 SC- other potential liability defenses: (1)comparative negligence (2) Sovereign/Governmental Immunity (street defects, actual or constructive notice and failure to remedy, and damages caps) 36

37 Land Acquisition Selling Points for Trail Access Acquisition Methods: (1)Buy the land, a conservation easement, or access easement (2)Donate the land, conservation easement, or access easement (3)Hybrid- Bargain sale, cash and donation 37

38 Tax Incentives for donations and bargain sales Federal- (1) Fee interest: Donations of fee simple land held as long-term capital gain property may be deducted as a charitable contribution up to the full fair market value of the property. The deduction is usually limited to 30% of adjusted gross income ( AGI ) in the year of the donation and any unused portion of the deduction may be carried forward for an additional 5 years, subject to the 30% cap in each of those years. 38

39 (2) Conservation easements: The enhanced federal income tax deduction for conservation easement donations is set to expire in I.R.C. 170 (h). Currently, easement donors can generally deduct the value of a donation up to 50% of AGI in the year of the donation and carry forward any unused portion of the deduction for an additional 15 years, subject to the 50% cap in each of those years. Qualified farmers and ranchers or those with forestry operations who earn at least half their income from their land can claim deductions up to 100% of AGI with 15 years of carryover. If the enhanced incentives expire, conservation easement donations made after 2013 may be deductible up to 30% of AGI in the year of the donation with 5 years of carry forward. 39

40 In order to qualify for a tax deduction, the conservation easement donation must be: (1) a qualified real property interest (entire interest, remainder interest, or a restriction granted in perpetuity ), (2) to a qualified organization, and (3) exclusively for conservation purposes. Conservation purpose is satisfied if the donation is for: (1) preservation of land for outdoor recreation by, or for the education of, the general public; (2) protection of relatively natural habitat; (3) preservation of open space (including farmland or forest land) where such preservation is (a) for the scenic enjoyment of the general public, or (b) pursuant to a clearly delineated governmental conservation policy, and will yield significant public benefit, or (4) preservation of an historically important land area or a certified historic structure. Donations in excess of $5,000 must be supported by a qualified appraisal. 40

41 Access Easement Treas. Reg Section 1.170A-14- Perpetual Conservation Restriction a restriction granted in perpetuity on the use which may be made of real property including an easement, or other interest in real property that under state law has attributes similar to an easement (e.g. restrictive covenant). Example: Donation to conserve land for outdoor recreation by the general public may include preservation of a nature or hiking trail. 41

42 Potential Donation Issues: (1)Donative Intent- dedication of land for subdivision approval or increased density (2) Valuation (3) Conservation purpose (4) Qualified organization 42

43 NC Conservation Tax Credit (expires ) Credit for certain real property donations. (a) An individual or pass-through entity that makes a qualified donation of an interest in real property located in North Carolina during the taxable year that is useful for (i) public beach access or use, (ii) public access to public waters or trails, (iii) fish and wildlife conservation, (iv) forestland or farmland conservation, (v) watershed protection, (vi) conservation of natural areas as that term is defined in G.S. 113A (3), (vii) conservation of natural or scenic river areas as those terms are used in G.S. 113A-34, (viii) conservation of predominantly natural parkland, or (ix) historic landscape conservation is allowed a credit against the tax imposed by this Part equal to twenty-five percent (25%) of the fair market value of the donated property interest. 43

44 To be eligible for this credit, the interest in property must be donated in perpetuity for one of the qualifying uses listed in this subsection and accepted in perpetuity for the qualifying use for which the property is donated. The person to whom the property is donated must be the State, a local government, or a body that is both organized to receive and administer lands for conservation purposes and qualified to receive charitable contributions under the Code. Lands required to be dedicated pursuant to local governmental regulation or ordinance and dedications made to increase building density levels permitted under a regulation or ordinance are not eligible for this credit. 44

45 A Donor of land or a conservation easement may receive a dollar for dollar state income tax credit equal to 25% of the appraised value of the donated property up to a maximum of: (1) $250,000 for individuals; (2) $500,000 for husband and wife who are both required to file NC returns and who file a joint return; (3) $500,000 for C corporations; and (4) $500,000 for pass through entities with the individual maximum amount of $250,000 and the corporate maximum amount of $500,000 imposed at the shareholder level. Any unused portion can be carried forward for the next 5 succeeding years. 45

46 South Carolina Tax Credit-SC Code Allows a taxpayer who is entitled to and claims a federal charitable deduction for a gift of land for conservation or for a qualified conservation contribution on a qualified real property interest located in South Carolina to claim a South Carolina income tax credit equal to 25% of the value of the gift of land for conservation or to the qualified real property interest associated with the qualified conservation contribution. The credit cannot exceed $250 per acre of property to which the qualified conservation contribution or gift of land for conservation applies. The total credit claimed by a single taxpayer cannot exceed $52,500 per year. Any unused credit may be carried forward until used. For purposes of this credit, qualified conservation contribution and qualified real property interest have the same meaning as defined in Internal Revenue Code 170(h). 46

47 Thank you Mackenzie Lawson who generously volunteered her time to assist in preparing this presentation. 47

48 Thank you!