Landowner Liability Protection

In 1998, the Vermont Legislature enacted a new set of laws that limit the liability of landowners who make their land available to the public for recreational purposes. The law can be found in Vermont Statutes at 12 V.S.A. §5791, et seq. The law was passed as a result of the tireless efforts of Conrad Motyka, Vermont's Commissioner of Forests, Parks & Recreation, and with the extensive educational efforts of individual legislators undertaken by the Vermont Mountain Bike Advocates, the Catamount Trail Association, and the Green Mountain Club.

For mountain bikers the upside of the law is more landowners will likely allow the use of their open and undeveloped land for biking.

Here is what the law does:

Clarifies existing law by providing landowners with a clear explanation of their potential liability to recreational users.

Limits liability in that it raises the standard of care that a landowner owes a recreational user to "willful and wanton misconduct." This is the same standard of care that a landowner owes to a trespasser. In other words, a landowner can only be successfully sued if a recreationalist is hurt as a result of the willful and wanton misconduct of the landowner. In addition, under the new law a landowner has no duty to inspect the land to be sure that it is safe for a specific recreational use or to discover any dangerous conditions.

To be covered by the new law, a landowner cannot charge a fee to use the land. Land is defined as "open and undeveloped." Open and undeveloped can include posted land, fenced land, agricultural land or land with forestry related structures. The Legislature provided that the bill is to be liberally construed to limit a landowner's liability.

With this law in place, mountain bikers have a tool to use to (encourage/persuade) private landowners to open their land for cycling. The passage of this law demonstrates the power we have as citizens to influence our legislators to pass laws that benefit everyone. 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. Prior to bringing any groups to previously untraveled areas of land, it would make sense for guides to first inspect all bridges and walkways to test their safety.

Finally, although a landowner has made land available for recreational purposes, he or she 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.

The State of Vermont Publishes a booklet which is available through VMBA, from the state, or which can be directly accessed and printed from this pdf document: pubrec.pdf