To: |
House Tourism and Recreational Dev. Comm. |
| Date: |
April 30, 2008 |
| Location: |
Patton, Pennsylvania |
| Person Testifying: |
John Bell, PFB Staff |
Good morning, Mr. Chairman and members of the Committee. I am John Bell, and I currently serve as Governmental Affairs Counsel for Pennsylvania Farm Bureau. On behalf of Farm Bureau and the more than 42,000 farm and rural families who are members of our organization, I want to thank you for the opportunity offer testimony today regarding the statutory changes to the Recreational Use of Land and Water Act proposed in House Bill 1908.
At the outset, I want to thank you, as legislators, for your prompt response last year in enacting the amendments to the Recreational Use of Land and Water Act contained in House Bill 13. This bill, which was passed unanimously by both chambers of the General Assembly, was a statutory response to an unfortunate set of circumstances and legal outcome which placed the future of access to private land for hunting in serious jeopardy.
A 2006 court case in Lehigh County held a farmer to be liable for injuries to an individual off the farm premises from a stray bullet fired from a hunter whom the farmer allowed hunt on the farm. This case received statewide attention among farming and rural communities. Landowners throughout the Commonwealth who for years welcomed hunters to hunt on their property decided that the risk of legal liability was just too great to continue to do so.
Your response in enacting House Bill 13 helped restore the reasonable expectations of protection from liability that landowners who allowed others to hunt on their lands believed they had prior to the Lehigh County case.
House Bill 1908 proposes to make several statutory changes that are consistent with decisions made by courts in interpreting the Recreational Use of Land and Water Act and the extent and limitation of protections intended to be provided to landowners. Our courts have recognized, for example, that snowmobiling and motorbike riding fall within the scope of the Act’s definition of “recreational purposes” for which the protections from liability may apply.
Several other changes proposed in House Bill 1908 may be viewed by some as expanding the scope of landowner protection to include several “improvements to land”, as well as land in its natural state. But the “improvements” for the bill proposes to extend protection from liability are, in large part, accessories that facilitate the recreational purposes for which access to land is sought by the public. The bill’s attempt to include “boating access and launch ramps,” “fishing piers” and “public access and parking areas” within the scope of “land” for which the protection from liability may apply is, in our view, a reasonable extension of the Act’s overall policy objectives to encourage landowners to allow others to use their lands for recreational purposes. Launching a boat or parking a vehicle are not recreational activities themselves. But they do facilitate those recreational uses that the public truly seeks to perform on public and private land.
I would note that the bill’s proposed inclusion of these items in the definition of “land” does not mean absolutely that the landowner is absolved of liability for any injury occurring on these improvements, because of the exceptions to liability protection that the Act provides. But it would raise the level of protection from liability to landowners for injuries sustained from use of these improvements above the level of ordinary negligence.
One of the areas that House Bill 1908 attempts to statutorily clarify is the Act’s intended scope of “malicious or wilful” conduct for which a landowner would not protected under the Recreational Use of Land and Water Act. Section 6 of the Act denies the Act’s protection from liability in situations where there is “wilful or malicious failure [by the landowner] to guard or warn against a dangerous condition, use, structure or activity.” At a minimum, “wilful” or “malicious” conduct suggests extreme indifference or neglect by landowner in correcting conditions that will likely cause serious injury to others exposed to the condition. However, some cases have concluded that the “wilful” or “malicious” failure exception may apply in less than extreme situations, where the landowner had reason to know of a condition on the premises that may cause injury and that the landowner failed to correct.
House Bill 1908 would more clearly state the extreme degree of conduct that the landowner must exude in order to be denied protection under the Act. To be the type of “wilful” or “malicious” conduct for which the Act’s protection from liability would not apply, the bill would require that the landowner intentionally intended to cause harm or showed utter indifference or conscious disregard for the safety of others through his or her failure to warn or guard against the injury causing condition.
House Bill 1908 would make one substantive change to the Recreational Use of Land and Water Act that our organization would find to be particularly positive. Where a lawsuit has been brought against a landowner and the landowner has successfully asserted the Act’s protection from liability in defense of the lawsuit, House Bill 1908 would require that the landowner be awarded attorney fees and legal costs that the landowner incurred in his or her defense.
While the Act’s statutory protection from legal liability has provided a significant benefit to landowners who allow others to use their property for recreational purposes, it does not absolutely absolve landowners of the economic burdens in defending attempts by injured parties and their attorneys who nonetheless decide to sue the landowner anyway. Considerable time and effort is made in litigation brought against a landowner who is legally protected from liability under the Act’s general rule to fit an injured plaintiff into one of the exceptions to liability protection recognized in the Act. Defendant landowners and their attorneys must take deliberate care in responding to creative theories advocated in the litigation that the exception to the Act’s general rule of liability protection, rather than the rule, should apply in the particular case brought against the landowner. Even though landowners may legally “win” in the predominant majority of cases, farmers and landowners who must defend themselves in court may still bear significant costs to obtain the legal result that the Act intended.
House Bill 1908’s proposed provisions to award attorney fees to defendant landowners successfully asserting the Act’s protection from liability will encourage injured plaintiffs and their attorneys to more carefully evaluate the degree to which the Act’s bar from recovery of damages applies to their case, and will better ensure that landowners who must bear the cost of legal process to successfully assert the Act’s protections will be made economically whole from their efforts.
In sum, Farm Bureau supports the legislative amendments to the Recreational Use of Land and Water Act contained in House Bill 1908, and would urge this Committee to take action to favorably report the bill.
Thank you again for the opportunity today to share with you our views. I will try to answer any questions you may have.
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