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State of the State: New Law Should Ease Landowner Worries About Liability Issues

Jamey Dunn
mattpenning.com 2014
WUIS/Illinois Issues

While most of the focus on environmental issues this legislative session was on fracking, conservationist groups quietly celebrated the passage of a bill that would potentially open up more land in the state for recreation.

Every state has its own version of a law called the Recreational Use of Land and Water Act, which protects private landowners who allow the public to use their land from liability if someone is injured on their property. “For 40 years nationwide, every state has basically had provisions which incentivize people who are generous to open up their land like a park or a reserve for free to the public for recreation or conservation,” says Stacy Meyers, policy coordinator for Chicago-based Openlands, a conservation group with a focus on protecting land for public use. 

But an Illinois Supreme Court ruling and subsequent narrowing of the law by the General Assembly left landowners protected in only very limited cases when allowing people onto their land. Open space and conservation advocates say this has had a chilling effect and has left Illinois residents with fewer opportunities to learn and play in natural settings.

In the early 2000s, an Illinois family built a sled run on their property and allowed neighbors and friends to use it. One of their invited guests slipped and was injured, and the owners of the run argued that they were protected by the state’s recreational use of land protections. The Illinois Supreme Court disagreed, ruling in Hall v. Henn that the protection only applied to landowners who make their property available to the public at large and not to those who invited a select few. In the opinion, the justices noted that the act itself said it existed “to encourage owners of land to make land and water areas available to the public for recreational or conservation purposes.” Giving homeowners broad protection from liability anytime a neighbor comes over to play in the yard did not fit that bill. 

“So the court said, ‘No, that’s not what this is for.’ And it made that public [versus] private [use of land] distinction very clear,” Meyers says. 

And if Illinois’ law had stood the same after that ruling, Meyers and others say that would have been OK. But, of course, it did not.

Meyers says people who invited hunters onto their property assumed that they were protected under the law, but with the Hall v. Henn ruling, they realized that was likely not the case. “So they went to the legislature and were very upset,” she says. 

Lawmakers approved a rewrite of the law that protected landowners who allowed hunters onto their land, even if they did not open it up for the public. However, they also limited the liability protections only to this group. That move made Illinois the only state in the country that did not provide liability protection for property owners who allow public use of their lands. “The General Assembly enacted a law that quietly but dramatically changed the liability protections for people that opened their land for public use for conservation and recreation,” says Sen. Don Harmon, an Oak Park Democrat.

Meyers says that concern over being sued caused some landowners to close areas of the state to the public. “After that happened, we noticed. And so did a number of people that open up their land to the public.” Openlands and several other groups have been working for seven years to get the law changed. 

One such case was Draper’s Bluff, a popular rock climbing area in southern Illinois. “For many, many years, the Recreational Use of Land and Water Areas Act protected private landowners from liability by essentially stating that as long as property owners did not charge admission, they would have a greatly limited liability if the entrant was present for recreation or conservation purposes. This language has been changed to hunting or recreational shooting only,” Eric and Kathy Ulner wrote in an open letter when they decided to close their land to the public in 2009. The Ulners’ climbing school continued to guide climbers on the bluff under the protection of liability insurance. “With this change, any private property owner in Illinois can be held liable for a hiker’s sprained ankle, an equestrian’s injury from being thrown from a horse, a drowning from a fishing accident or a climber’s ground fall injury. ... We never thought we would see the day that we would have to close Draper’s Bluff to climbing. It has been a pleasure to meet new climbers from the area and those passing through. Many of our friendships have been forged in this way. We are left with no choice, though, but to close our property to anyone. We have but one house to live in and are not willing to risk it to pay off the grieving family of a climbing fatality or lifelong rehab expenses of a spinal injury.” 

Meyers says it wasn’t just individual landowners who were troubled by the prospect of facing costly litigation. She says some organizations opted not to open up land they bought after the change. “There are a number of land trusts that have basically purchased land since the liability coverage was changed, and they refused to open it because of fear of liability.” Under the law, groups that do offer up their land have to pay more for liability insurance. 

Few of Illinois’ natural settings are publicly owned. A 2007 study from the Illinois Environmental Council Education Fund found that Illinois fell behind its neighboring states when it comes to setting aside land for the public. “In total, only 1 percent of Illinois is protected, state-owned recreation land. Illinois is sixth out of seven Midwestern states in percentage of area and is last by a wide margin on a per capita basis.”

Gov. Pat Quinn has spearheaded projects that invest in some of Illinois’ open spaces as part of his No Child Left Inside initiative, but with the budget crunch the state faces, it is unlikely that state government is going to start buying up a substantial amount of land in the near future. “We just can’t afford land, nor do people necessarily want to sell these beautiful places,” Meyers says. 

Harmon sponsored Senate Bill 1042, which would restore that liability protection to private landowners who allow people onto their property for recreation. The bill would also keep the exemption intact for those who allow invited hunters on the property. But Meyers says that the definitions of public and private use of land are in line with the Supreme Court ruling. “You can’t invite folks over to a cookout and go swimming off your patio that’s right next to your house and say that that’s for the public good,” she says. 

The bill will not protect landowners from all forms of liability. If someone is injured because of a landowner’s “willful and wanton failure” to warn visitors about an obviously dangerous aspect of their property, such as a rock wall that is perpetually falling down, the landowner would be liable. “If you know that there is something on your property that is inherently dangerous, you shouldn’t make your land open without adequately notifying,” Harmon says. “You don’t want to invite Timmy and Lassie on there with the open well.”

The proposal passed in both legislative chambers with no opposition, and Quinn is expected to sign it into law. Harmon noted that the soon-to-be new law would provide diverse opportunities for residents seeking fun and games outdoors, as well as conservation groups seeking to preserve natural areas and teach the public. “For the particularly larger tracts, just as a matter of public policy you would like to have that public space to be open to the public.” But he points out another important use of private land: connecting nature trials. “You’re trying to put together a nature walk or a hiking trail; it may need to cross someone’s property,” he says. But with no protection from potential lawsuits, Harmon notes that the landowner has little reason to allow it. He or she would be open to a lawsuit if a hiker simply slipped and turned an ankle. 

Groups such as The Nature Conservancy welcome the change. “We want people to come to our property to take a look and understand it,” says Susan Donovan, director of government relations with The Nature Conservancy in Illinois. The conservancy restored thousands of acres of farmland back to wetlands at the Emiquon Preserve south of Peoria. The organization built boardwalks and installed telescopes to allow the public to explore and learn from the preserve. She says she hopes the changes in the law will create more opportunities for Illinoisans to connect with nature and learn about science. “Hopefully, it will encourage private landowners, whether they are mom-and-pop farm owners or a trust like ourselves, to encourage people to come to their land.”

Advocates for the bill have been working to educate landowners about the expanded protections in the hope that they will consider opening up their property. The Illinois Department of Natural Resources also plans to help get the word out. “There are networks of land trusts for whom this applies, and we want them to be aware and how they might be able to open up more access,” Marc Miller, director of the IDNR, told the Springfield State Journal-Register.

Meyers thinks the change to the law will make people and trusts feel differently about allowing recreation on their lands. “People are afraid of getting hauled into court. That’s very real. And to have to defend yourself in a lawsuit, even if you can win, is a lot of money that a lot of people just don’t have,” she says. 

“Some of them, I know, will feel more comfortable, and we will all have more opportunity to spend time in some of these beautiful places and hike and paddle and play.” 

Illinois Issues, July/August 2013

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