Landowner Liability

This presentation was given by Jeff Pidot, who is chief of the Natural Resources Division at the Maine Attorney General’s Office. The ideas expressed here are those of the author alone. This is intended for general public interest only. Nothing in this presentation should be considered legal opinion of the Attorney General’s Office. Anyone seeking legal advice on liability laws should consult with a private lawyer.

My topic is the law related to landowner liability to public recreational users. We begin with a small primer on the common law of landowner liability. “Common law” is that body of court-made law that we largely inherited from England. To oversimplify, under the common law, a landowner owes a duty of reasonable care, to provide a reasonably safe premises for different classes of visitors and to guard against reasonably foreseeable dangers. Under the common law, failure by the landowner to exercise due care could result in landowner liability for injuries caused by that failure.

Having recited this oversimplified version of the common law on this subject, it is quite irrelevant to a discussion of landowner liability to public recreational users in Maine. This is because the Legislature may change the common law by enacting a statute, and it long ago decided that the common law on this issue was not what it wanted the law to be. Under the Landowner Liability Law, first enacted in 1979, the Legislature significantly changed the common law. Under this statute, with certain exceptions that I’ll describe, private landowners are relieved of most of the legal responsibility that they otherwise would owe under the common law to public recreational users. Although other states have enacted similar laws, so far as I know the statute in Maine offers landowners the strongest liability protections and immunities of any in the country.

What does this statute say? Generally speaking, the Landowner Liability Law provides broad immunization to private landowners from potential liability to recreational users of their land, even when the landowner’s negligence has caused harm.

Who are the “landowners” that get the protections of this law? Virtually everyone who has a legal relationship to private land, including landowners, lessees, land managers, other lawful land occupants and holders of conservation easements.

What sorts of activities may the public engage in where this statute immunizes landowners from liability? The statute refers to the covered activities as “recreational and harvesting activities,” a term that is very broadly defined. Included are essentially all public recreational activities conducted outdoors, with the following activities specifically mentioned in the statute: hunting, fishing, trapping, camping, environmental education and research, hiking, caving, sight-seeing, snowmobiling, using ATV’s, skiing, dog sledding, equine activities (I guess that’s a fancy term for horseback riding), boating, sailing, canoeing, rafting, biking, picnicking, swimming, harvesting or gathering of forest, field and marine products, and even hang-gliding.

Also included among the public’s activities, against which landowners are immunized under this law, are entry of and passage over private roads and lands in order to pursue any of these recreational activities.

Even recreational activities that occur on commercial or industrial property, or on property that has been posted, are still within the scope of the landowner’s liability immunity under this statute.

There are just a few exceptions to the broad protections of this law:

• This law does not cover commercial timber harvesting, agriculture or other commercial uses.
• Since the activities to which the law applies must be outdoors, activities that are engaged in purely indoors are not included. However, some activities that we might think of as “indoors,” like being in a car used to access a property for outdoor recreation, are still within the class of activities for which landowners are immune under the law.
• Also not within the scope of liability immunity under the statute are situations where the landowner grants exclusive recreational use to a person or group, or where the landowner is paid a fee and the land is primarily used for commercial recreation. However, the statute does extend immunity to landowners who charge a fee for access or road use, so long as the user doesn’t have exclusive rights to do so, and so long as the property is not used primarily for commercial recreation.
• Finally, also excluded from liability protection under this law are landowners who willfully or maliciously fail to guard against a known, dangerous condition with the result that an injury is caused. While this exception to landowner immunity might be important in some circumstances, there are no court decisions that suggest that landowners would be readily found liable under this standard in the absence of willfulness or malice.

And that brings us to some more good news for landowners under this law. Maine courts, unlike those in some other states, have construed the protections of the Landowner Liability Law broadly, and the exceptions to immunity narrowly. Here’s an example: In one case, the Maine Supreme Court found that the operator of an outfitting business who had a car collision on a negligently maintained road could not recover against the road owner even though the outfitter was paying fees for road use. In another case, a camp lot lessee who was injured while traveling over the landowner’s road to access his camp, could not recover against the landowner when injured because of the landowner’s poor maintenance of the road.

And there is even more good news for landowners who might be sued by someone who is injured while recreating on their property. The Landowner Liability Law allows landowners to recover from a claimant the amount the landowner has expended for legal fees and costs of defending a lawsuit where the statute provides legal immunity to the landowner. Needless to say, this is a powerful disincentive to persons in even thinking about bringing a lawsuit against a landowner under these circumstances, and it is not surprising to note that reported cases involving this law have disappeared in the wake of the enactment of this provision.

So, why has the Legislature made the Landowner Liability Law so friendly to landowners? There is an important policy reason for this law. As you know, Maine has a long tradition of informal public recreational use of private land. In part, this may be because of the State’s relative lack of public land compared to many other states. Whatever the reason, the Legislature has done everything possible to eliminate liability concerns of private landowners, so as to encourage them to let the public make recreational use of their property.

Now I’d like to turn my attention to a different law, of particular interest to the government officials. The Landowner Liability Law does not apply to land owned by state and local government. Liability of state and local government is determined under the Maine Tort Claims Act, which has two general features quite distinct from the Landowner Liability Law. First, unlike the streamlined simplicity of the Landowner Liability Law, the Maine Tort Claims Act is complicated. Second, in at least some respects, the Tort Claims Act may provide potentially less liability immunity to state and local governments as landowners than the Landowner Liability Law provides to private owners. This is an unusual phenomenon.

The Maine Tort Claims Act is arranged so as to provide general liability immunity to state and local government, subject to certain exceptions, that are in turn subject to certain exceptions. It goes deeper than this, but don’t worry because I won’t. Again, as I don’t practice in this area of the law, I will oversimplify.

The general rule under the common law was that the government was always and always immune from liability. This is the principle by which the King could do no wrong, and therefore the government historically enjoyed what is called sovereign immunity from all forms of negligence and other lawsuits. But here also, the Legislature changed the common law, and in this case, just the opposite of the Landowner Liability Law, the Legislature did so in ways that reduces immunity under the common law.

As pertinent to this discussion of landowner liability, the Maine Tort Claims Act provides some important exceptions to the common law rule of the government’s absolute immunity from negligence actions.

• First, the government is not immune, and is therefore subject to liability for its negligence, in connection with ownership, maintenance or use of motorized vehicles, machinery and equipment.
• Second, the government is subject to liability for its negligence in the ownership, maintenance or use of public buildings.
• Third, the government is subject to liability for its negligence in the construction or repair of public roads and bridges.
• Finally, the government is subject to liability for its negligence where it is covered by a liability insurance policy, to the extent of that coverage, and regardless of any exclusion from liability that might otherwise apply under the law.

The Tort Claims Act then provides a number of exceptions to the exceptions to the general rule of immunity. This means that, in these areas, the government remains immune even if it otherwise would be subject to liability under other parts of the Tort Claims Act.

The most pertinent Tort Claims Act provision relevant to this subject of this says that the government is immune with respect to occurrences on unimproved lands, historic sites, and other lands (including their improvements) that are designed for use primarily for public outdoor recreation. In short, state and local governments are immune from liability under the Tort Claims Act where the land involved is unimproved, or where, regardless of its improvement, it is primarily held for public outdoor recreation.

So then, what are a few of the subtle distinctions between the Landowner Liability Law, that protects private landowners from liability, and the Maine Tort Claims Act, that protects public landowners from liability?

The Tort Claims Act immunizes state and local government with respect to lands that are unimproved or those that are primarily intended for public outdoor recreation; while the Landowner Liability Law immunizes private landowners with respect to public recreational use, regardless of whether the land is intended for such use, and even regardless of whether the land has been closed by the landowner to public use.

The Landowner Liability Law provides complete protection to landowners regardless of whether they decide to carry liability insurance, while the Tort Claims Act makes the government liable to the extent that it carries insurance.

The Landowner Liability Law requires a claimant to pay the costs of the landowner’s legal defense if the claimant fails in his lawsuit against the landowner because of the immunity provided by that Law. The Torn Claims Act does not provide for reimbursement of state or local government’s legal costs when a claimant prosecutes an unsuccessful tort claim against them.

On the other hand, the Torn Claims Act provides a beneficial feature that is not included in the Landowner Liability Law. That is, the government’s liability exposure is limited by the Tort Claims Act to $300,000 for each occurrence. Private landowners, like any private parties, are not limited in potential damages they have to pay if they are found to be liable for an injury. However, this point hardly makes a difference in view of the fact that the Landowner Liability Law provides such sweeping immunity to private landowners as to their potential liability exposure to public recreational users.

To sum up, for private landowners concerned about exposure to liability lawsuits brought by members of the public recreating on their land, Maine is the way life should be. On the other hand, if you have the misfortune of being injured while recreating on another person’s property, I hope this happens to you … in California.