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New Limitations on Landowner Liability:

Advantages and Disadvantages for Outdoor Enthusiasts

In 1998, the Vermont Legislature enacted a new set of laws that limit the liability of landowners who make their undeveloped land and water courses available to the public for recreational purposes. 12 V.S.A. 5791, et seq. For outdoor enthusiasts, the upside of passing such a law is clear: more landowners will likely allow the use of their open and undeveloped land*including paths and trails*for activities such as hunting, fishing, trapping, camping, biking, hiking, skiing, water sports, and other similar activities. In addition, the law requires that the land be made available for use by the public free of charge. Thus, the Vermont Legislature clearly intended to pass a law which would allow for far greater access to the Vermont outdoors.

Of course, there is a downside for those who would like to take advantage of the newly unrestricted territory. The new law also maintains that the owner of the land is not liable for property damage or personal injuries sustained by a person who goes upon the owner's land for recreational purposes, unless the injury is the result of the "willful or wanton" misconduct of the owner. In Vermont, to show that a landowner acted with willful or wanton misconduct, one would have to show that the act was done "intentionally, designedly, knowingly, or purposely, without justification or excuse." State v. Parenteau, 153 Vt. 123 (1989). Willful or wanton misconduct requires actual or implied intent to injure. Hardingham v. United Counseling Service of Bennington County, Inc., 164 Vt. 478 (1995). In essence, the new laws suggest that the duty an owner of undeveloped land owes to the recreational user of land is identical with the duty the owner owes to a trespasser on his land. Baisley v. Missisquoi Cemetery Ass., 167 Vt. 473 (1998). Thus, should an outdoor enthusiast become injured on someone else's undeveloped land, the likelihood of placing blame on the landowner would be extremely difficult.

The new legislation not only refers to undeveloped land, but includes streams, rivers, and other water courses; bridges and walkways used to enter and go upon land; and fences. Therefore, recreational users must be prepared to use caution even when simply gaining access to undeveloped land. The law expressly provides that the fact that an owner has made land available*free of charge*for recreational users, does not mean that the owner provides any assurance that the land is safe; nor does it create any duty on an owner to inspect the land to discover dangerous conditions. It would make sense for guides*prior to bringing any groups to previously untraveled areas of land*to first inspect all bridges and walkways to test their safety.

Finally, although a landowner has made land available for recreational purposes, he is still entitled to enter into agreements for the recreational use of land which vary or supplement the duties and limitations created by the new law. Thus, should an organization become fond of a certain area of land, they are free to negotiate a fee with the landowner for use of his land. The owner's liability, then, would likely be governed by the terms of the agreement.