Tort & Insurance Newsletter – Dec 2013 Part I

The Great Outdoors:   A Review of Tennessee’s “Recreational Use” Statute

We in Tennessee know our state has an abundance of beautiful land to enjoy.  We also know that any outdoor excursion comes with the risk of injury or an accident.  But not many may know Tennessee has a “recreational use” statute that could offer a landowner relief from a claim or lawsuit when an accident occurs on the landowner’s property.  Tenn. Code Ann. § 70-7-102 provides that a landowner (and others in control of land, such as a lessee) owes no duty of care to keep the land safe for entry or use by others for certain recreational activities listed in the statute.  These activities include hunting, fishing, camping, water sports, hiking, rock climbing, off-road vehicle riding, and even sightseeing.  Further, a landowner is not required to warn of hazardous conditions or activities that are present on the land, except as provided by certain exceptions listed in Tenn. Code Ann. § 70-7-104.

A person who makes a claim arising from alleged recreational use of land may defeat the landowner’s statutory immunity by showing that the landowner’s conduct falls within one of the exceptions in § 70-7-104.  For example, a landowner will not be excused for gross negligence. In most cases, deciding whether conduct constitutes gross negligence will be a question of fact for a jury unless reasonable minds could reach only one conclusion.  Courts have found that conduct such as allowing trespassers to access a military firing range containing unexploded ordinances is gross negligence, but have also found that the failure to post a “No Trespassing” sign at a property known to have a cave was not gross negligence.

Further, the statute does not excuse a landowner for willful or wanton conduct resulting in a failure to guard or warn against a dangerous condition, use, structure, or activity on the land. And the statute does not apply if a third party is injured by the acts of a person whom the landowner allowed to use the land and if the landowner owed a duty to the injured third person.   The statute clearly states it is not intended to impose liability or to remove immunity for failure to guard or warn of a dangerous condition created by forces of nature.

If you receive a claim or lawsuit involving an accident that occurred during a recreational activity, these statutes may help provide an immunity defense or clarify liability for the landowner.  You should consult an attorney to decide whether Tennessee’s recreational use statute will apply.

For a full PDF version of this newsletter, click the link below……

Tort Insurance Newsletter Dec 2013 Issue