Recreation Limits Litigation

Everyone knows that Tennessee has rejected the historic invitee, licensee, and trespasser method of determining duty in premises liability cases.[1] Today, we know that when determining the duty that possessors of land owe to a particular plaintiff the court "balances the foreseeability and gravity of the potential harm against the feasibility and availability of alternatives that would have prevented the harm."[2] Right?

Not always. By the adoption of the so-called "recreational use statute," Tenn. Code Ann.  §70-7-101 et seq, the General Assembly has supplanted the common law when the plaintiff is engaged in recreational activities on land owned or possessed by another. The phrase "recreational activities" includes "such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant's own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant's own use."[3] No duty of care is owed to such persons, either to make the premises safe or to warn of dangerous conditions.[4] This limit on liability exists even if the landowner has given permission to use the property for recreational use.[5]

The Tennessee Supreme Court has interpreted the recreational use statute as one that gives rise to a defense to liability that requires a three-pronged analysis to determine the applicability of the statute: "(1) is the defendant a 'landowner' under the statute; (2) is the activity alleged a recreational activity as defined by the statute; and if so, (3) are any of the statutory exceptions or limitations to the immunity defense applicable?"[6]

Conversely, "Plaintiffs may defeat [the recreational use statute] affirmative defense in essentially three ways: (1) prove that the defendant is not a 'landowner,' (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner's conduct fits within one of the three exceptions in Tenn. Code Ann.  § 70-7-104."[7]

The statute defines "landowner" as "the legal title holder or owner of [] land or premises, or the person entitled to immediate possession of the land or premises, and includes any lessee, occupant or any other person in control of the land or premises."[8] Any governmental entity,[9] including the Tennessee Valley Authority,[10] can be a landowner within the meaning of a statute. "'Land' or 'premises' means and includes all real property, waters, private ways, trees and any building or structure that might be located on real property, waters and private ways."[11] However, 'land' or 'premises' does not include the landowner's principal place of residence and any improvements erected for recreational purposes that immediately surround such residence, including, but not limited to, swimming pools, tennis or badminton courts, barbecue or horse shoe pits, jacuzzis, hot tubs or saunas."[12]

The next inquiry is whether the activity is a "recreational activity" within the meaning of the statute. The laundry list of recreational activities set forth above is not the end of the story. In Parent v. State the Tennessee Supreme Court held that the list is neither "exclusive nor exhaustive" given the statute's use of the phrase "such recreational activities as ...."[13] Therefore, the Parent court applied the statute to bicycling by the plaintiff.[14] The statute has even been applied to a person who was injured while walking on a sidewalk in a state park. The court ruled that because the plaintiff was in the park to attend Archeofest, an annual event featuring Native American exhibits, educational programs, arts, and crafts, and also to participate in hiking and a hayride, she was in the park for purposes of "recreation" within the meaning of the statute.[15]

The final inquiry is whether any of the statutory exceptions or limitations to the immunity defense are applicable. First, the statute provides that liability is not limited in the event of "[g]ross negligence, willful or wanton conduct that results in a failure to guard or warn against a dangerous condition, use, structure or activity."[16] The failure to place a "No Trespassing" sign on property known to house a cave was not gross negligence as a matter of law.[17] Permitting trespassers to have access to a military firing range containing unexploded ordinance was held to constitute gross negligence.[18] Finally, the court of appeals has held that whether the conduct of the landowner in an off-the-road riding case rose to the level of gross negligence was a question of fact.[19]

The second exception to the no-duty rule provides that liability is not limited that "otherwise exists for injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike, sightsee, cave, or any other legal purpose was granted, to third persons or to persons to whom the person granting permission, or the landowner, lessee, occupant, or any person in control of the land or premises, owed a duty to keep the land or premises safe or to warn of danger."[20] This provision has never been interpreted by a Tennessee appellate court and, quite frankly, it is confusing to this public school graduate.

Lawyers involved in cases where the injured person was involved in any sort of recreational activity should review this statute before filing a complaint or an answer.

Notes

1. Rice v. Sabir, 979 S.W2d 305, 308 fn. 3 (Tenn. 1998); Hudson v. Gaitan, 675 S.W.2d 699, 703-04 (Tenn.1984).

2. See e.g., Hale v. Ostrow, 166 S.W.3d 713 , 716 (Tenn. 2005).

3. Tenn. Code Ann.  §70-7-102.

4. Id.

5. Tenn. Code Ann. §70-7-103.

6. Parent v. State, 991 S.W.2d 240. 242 (Tenn. 1999).

7. Morgan v. State, 2004 WL 170352 at * 4 (Tenn. Ct. App. Jan. 27, 2004).

8. Tenn. Code Ann.  § 70-7-101(2)(A).

9. Tenn. Code Ann.  § 70-7-101(2)(B).

10. Tenn. Code Ann..  § 70-7-101(1)(B).

11. Tenn. Code Ann.  § 70-7-101(1)(A).

12. Tenn. Code Ann. § 70-7-101(1)(C).

13. Parent v. State, 991 S.W.2d 240. 243 (Tenn. 1999).

14. Id.

15. Matthews v. State, 2005 WL 3479318 at *4 (Tenn. Ct. App. December 19, 2005). Under this construction of the statute, one could argue that no duty is ever owed to someone who visits a state park unless they are there simply to eat and (illegally) drink beer.

16. 7 Tenn. Code Ann.  § 70-7-104(1); Bishop v. Beckner, 109 S.W.3d 725, 729 (Tenn. Ct. App. 2002).

17. Id.

18. Summer v. United States, 794 F. Supp. 1358, 1367 (M.D. Tenn. 1992).

19. Newcastle v. State, 2002 WL 31926848 at *5 (Tenn. Ct. App. Dec. 31, 2002).

20. Tenn. Code Ann.  § 707-104(2).

21. Tenn. Code Ann.  § 70-7-101(1)(C).


John A. Day JOHN A. DAY, a trial lawyer in Brentwood, engages in recreation by writing the Tennessee Trial Law Report, a monthly newsletter on tort, civil procedure and evidence law, and A Handbook for Tennessee Tort Lawyers 2009. He encourages readers to recreate in their neighbor’s hot tub, a site where common law tort duty is preserved.