WEST virginia legislature
2020 regular session
Introduced
Senate Bill 41
By Senator Maynard
[Introduced January
8, 2020; referred
to the Committee on Natural Resources; and then to the Committee on the
Judiciary]
A BILL to amend and reenact §19-25-2, §19-25-3, §19-25-4, §19-25-5, and §19-25-6 of the Code of West Virginia, 1931, as amended, all relating generally to limiting landowner liability for injuries to, or caused by, persons entering or going upon land for noncommercial recreational purposes, wildlife propagation purposes, military training purposes, law-enforcement training purposes, or homeland defense training purposes; clarifying that limitation on liability and duty to warn applies only to landowner permitting the general public to enter or go upon such land for recreational or wildlife propagation purposes; providing that a landowner is not liable for, and has no duty to warn of, dangerous or hazardous wild animals on the land; deleting obsolete language providing that a landowner does not confer invitee or licensee status on persons invited or permitted upon land; substituting the term “fee” for the term “charge”; defining the term “fee”; providing that for the purposes of limiting landowner liability, a fee does not include a fee for an annual event or occurrence if the total of such fees in a year do not exceed $25 per individual; providing that for the purposes of limiting landowner liability, a fee does not include voluntary donations to certain charitable entities; amending the term “land” to include premises; amending the definition of the term “owner of land” to specifically include any person holding legal possession, ownership, or partial ownership of an interest in land or a person sponsoring land or premises for volunteer improvement or maintenance purposes; amending the definition of the term “recreational purposes” to specifically include parking on or traversing land to engage in recreational activities and maintaining, or making improvements to, land for the purpose of making recreational activities accessible; naming the activities of rock climbing, bouldering, and kayaking as being activities within the definition of “recreational purposes”; and making numerous technical corrections.
Be it enacted by the Legislature of West Virginia:
ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.
§19-25-2. Limiting duty of landowner generally.
(a) Subject to the provisions of §19-25-4 of this code,
an owner of land owes no duty of care to keep the premises the land
safe for entry or use by others the general public for
recreational or wildlife propagation purposes, or to give any warning of a
dangerous or hazardous condition, use, structure, wild animal, or
activity on such premises thereon to persons members of
the public entering or going upon
the land for such purposes.
(b) Subject to the provisions of §19-25-4 of this code,
an owner of land who, without charging
a fee, either directly or indirectly invites or permits without charge
as that term is defined in section five of this article any person to use
such property members of the general public enter or go upon the land
for recreational or wildlife propagation purposes does not thereby (a)
extend any assurance that the premises are the land is safe for
any purpose or (b) confer upon such persons the legal status of an
invitee or licensee to whom a duty of care is owed; or (c) assume
responsibility for or incur liability for any injury to person or
property caused by an act or omission of such persons members of the
public.
§19-25-3. Limiting duty of landowner who grants a lease, easement, or license of land to federal, state, county, or municipal government or any agency thereof.
(a) Unless otherwise agreed in writing, an owner of
land who grants a lease, easement, or license of land to the federal, state,
or local government or any agency thereof, or the state or any
agency thereof, or any county or municipality or agency thereof for
military training purposes, law-enforcement training purposes, or
homeland defense training purposes, or recreational purposes,
or wildlife propagation purposes owes no duty of care to keep that land safe
for entry or use by others for such purposes, or to give warning to
persons entering or going upon the land for such purposes of any
dangerous or hazardous conditions, uses, structures, or activities, or wild animals
thereon.
(b) An owner of land who grants does
not, by granting a lease, easement, or license of land to the federal
government or any agency thereof, or the state or any agency thereof, or any
county or municipality or agency thereof for military, law-enforcement or
homeland-defense training, or recreational or wildlife propagation purposes
does not by giving a lease, easement, or license (a) described in
subsection (a) of this section, extend any assurance to any person using
the land that the premises are land is safe for any purpose or
(b) confer upon those persons the legal status of an invitee or licensee to
whom a duty of care is owed or (c) assume responsibility for
or incur liability for any injury to person or property caused by an act or
omission of a person who enters upon the leased land. The provisions of
this section apply whether the person entering upon the leased land is an
invitee, licensee a trespasser or otherwise.
§19-25-4. Application of article.
(a) Nothing herein in this article limits in
any way any liability which otherwise exists:
(a) (1) For deliberate, willful, or malicious
infliction of injury to persons or property; or
(b) (2) For injury suffered in any case where the
owner of land charges a fee in
exchange for the person or persons who
to enter or go on upon the land other than the amount, if
any, paid to the owner of the land by the federal, state, or local
government or any agency thereof. the state or any agency thereof, or any
county or municipality or agency thereof.
(b) Nothing herein in this article creates
a duty of care or ground of grounds for liability for injury to
person or property.
(c) Nothing herein in this article limits
in any way the obligation of a person entering or going
upon or using the land of another for recreational or wildlife
propagation purposes to exercise due care in his or her use of such the
land and in his or her or activities thereon.
(d) The amendments to this article made during the regular session of the Legislature, 2020, removing all provisions related to the absence of invitee or licensee status of persons entering or going upon land, are intended to remove provisions made obsolete by the holding of the West Virginia Supreme Court of Appeals in Mallet v. Pickens, 206 W.Va. 145, 522 S.E.2d 436 (1999) and do not create any new duty of care or grounds for liability.
§19-25-5. Definitions.
Unless the context used clearly requires a different meaning, as used in this article:
“Charge” “Fee” means (A) For purposes of limiting
liability for recreational or wildlife propagation purposes set forth in
§19-25-2 of this code the amount of money asked in return for an invitation
to enter or go upon the land: including a one-time fee for a
particular event, amusement, occurrence, adventure, incident, experience, or
occasion which may not exceed $50 a year per recreational participant: Provided,
That the monetary cap on charges imposed pursuant to this article does not
apply to the provisions of Provided, That the term does not include:
(A) A fee for participation in an annual event or occurrence on the land: Provided, That a landowner does not charge a total of more than $25 per individual permitted to enter or go upon the land during a calendar year;
(B) The fees charged pursuant to §20-14-1 et seq. of this code pertaining to the Hatfield-McCoy Regional Recreation Authority or activities sponsored on the Hatfield-McCoy Recreation Area; or
(C) Any voluntary donation to an organization holding charitable organization status under Section 501(c)(3) of the Internal Revenue Code for the purpose of maintaining, improving, or promoting access to the land at issue.
(B) For purposes of
limiting liability for military, law enforcement, or homeland-defense training
set forth in §19-25-6 of this code, the amount of money asked in return for an
invitation to enter or go upon the land
“Land” includes, but is not
limited to, roads, water, watercourses, private ways, and buildings, premises,
structures, and machinery or equipment, when attached to the realty.
“Noncommercial recreational
activity” does not include any activity for which there is any charge which
exceeds $50 per year per participant a fee is charged.
“Owner of land” means
any person holding legal possession, ownership, or partial ownership of an interest
in land and includes, but is not limited to, a tenant, lessee,
occupant, or person in control of the premises land, or a person sponsoring land for volunteer
improvement or maintenance purposes.
“Recreational purposes” includes means:
(A) Any noncommercial recreational activity undertaken
outdoors, or practice or instruction in any such activity, for the purpose of
exercise, relaxation, or pleasure, including, but is not limited to, any one or any
combination of the following noncommercial recreational activities: Hunting,
fishing, swimming, boating, kayaking, camping, picnicking, hiking, rock climbing, bouldering, pleasure driving, motorcycle or all-terrain vehicle
riding, bicycling, horseback riding, spelunking, nature study, water skiing,
winter sports, and visiting, viewing, or enjoying historical, archaeological,
scenic, or scientific sites, or aircraft or ultralight operations on
private airstrips or farms; or otherwise using land for purposes of the user
(C) Maintaining, or making improvements to, land for the purpose of making such land accessible or usable for a recreational activity described in paragraph (A) of this subdivision.
“Training purposes”, as that term describes military, law-enforcement, and homeland defense activities, includes, but is not limited to, training, encampments, instruction, overflight by military aircraft, parachute drops of personnel or equipment, or other use of land by a member of the Army National Guard or Air National Guard, a member of a reserve unit of the armed forces of the United States, a person on active duty in the armed forces of the United States, a state or federal law-enforcement officer, a federal agency or service employee, a West Virginia Military Authority employee, or a civilian contractor supporting the military or government employees acting in that capacity.
“Wildlife propagation
purposes” applies to and includes all ponds, sediment control structures,
permanent water impoundments, or any other similar structure created in
connection with surface mining activities as governed by §22-3-1 et seq. of
this code or from the use of surface in the conduct of underground coal mining
as governed by that article and any rules promulgated because of the article,
which ponds, structures, or impoundments are designated and certified in
writing by the Director of the Division of Environmental Protection and the
owner to be necessary and vital to the growth and propagation of wildlife,
animals, birds, and fish, or other forms of aquatic life and finds and
determines that the premises have the potential of being actually used by the
wildlife for those purposes and that the premises are no longer used or
necessary for mining reclamation purposes. The certification shall be in form
satisfactory to the director and shall provide that the designated ponds,
structures, or impoundments may not be removed without the joint consent of the
director and the owner. and
“Military, law
enforcement, or homeland-defense training” includes, but is not limited to,
training, encampments, instruction, overflight by military aircraft, parachute
drops of personnel or equipment, or other use of land by a member of the Army
National Guard or Air National Guard, a member of a reserve unit of the armed
forces of the United States, a person on active duty in the armed forces of the
United States, a state or federal law-enforcement officer, a federal agency or
service employee, a West Virginia military authority employee or a civilian
contractor supporting the military and/or government employees acting in that
capacity
§19-25-6. Limiting duty of landowner for use of land for military, law-enforcement, or homeland security purposes.
(a)
Notwithstanding the provisions of §19-25-4
of this code to the contrary, an owner of
land owes no duty of care to keep the premises the land safe for
entry or use by others for military training purposes, law-enforcement training
purposes, or homeland defense training purposes, regardless of whether any charge
is made fee is charged therefor, or to give any warning of a
dangerous or hazardous condition, use, structure, wild animal, or
activity on the premises thereon to persons entering for those
purposes.
(b) Notwithstanding the provisions of §19-25-4 of this code to
the contrary, an owner of land who either directly or indirectly invites or permits,
either with or without charge charging a fee, any person to use
the property for military training purposes, law-enforcement training
purposes, or homeland defense training purposes does not thereby (a)
extend any assurance that the premises are land is safe for any
purpose (b) confer upon those persons the legal status of an invitee or
licensee to whom a duty of care is owed; or (c) assume
responsibility for or incur liability for any injury to person or
property caused by an act or omission of those persons the person.
NOTE: The purpose of this bill is to encourage landowners to make land available for recreational purposes by limiting landowner liability.
Strike-throughs indicate language that would be stricken from a heading or the present law and underscoring indicates new language that would be added.