State that charged admission fee to park is not protected from liability by recreational use statute

Law Reporter, May 2002

GOVERNMENT LIABILITY

State that charged admission fee to park is not protected from liability by recreational use statute.

Allen v. State, 36 P.3d 1275 (Idaho 2001).

The Idaho Supreme Court held that the state's recreational use law-which protects from liability landowners who do not charge for the use of their land for recreational purposes-does not protect the state from liability for injuries suffered at a state park where an entrance fee was charged.

Here, Allen was injured while fishing in a state park. Allen and his parents sued the state, alleging, among other claims, that defendant failed to make the premises safe. The trial court granted defendant's motion to dismiss the claim, finding that defendant was protected from liability under the state's recreational use statute.

Vacating the trial court's decision, the state high court noted that the purpose of the recreational use statute is to encourage landowners to make land and water areas available to the public without charge by limiting landowners' liability. Consequently, landowners protected by the statute owe individuals on the property with permission only the same duty owed to a trespasser, the court explained. The law, however, applies only to landowners who do not "charge" for the use of their premises, the court said.

Here, plaintiffs paid an admission fee to enter the park. After paying the fee, plaintiffs were not prohibited from engaging in recreational activities, and the statute does not require individuals to formulate a specific intent to use property for a recreational purpose, the court found. In addition, the court rejected defendant's argument that the statute applies because a substantial part of the admission fees are used to fitd construction and maintenance of roads and parking areas. There is no provision in the act, the court said, that conditions a landowner's protection from liability on the use to which money from a recreational user is put. The fact that a portion of the fee that was charged may have been intended for upkeep of the park is irrelevant.

Moreover, the fee charged was not solely for parking, the court noted. Users had to pay the fee no matter where they parked, and the signs around the park's entrance stated that a day visitor must pay a fee to enter the park. It follows from this, the court reasoned, that the entire park, and not just the lot where an individual's vehicle is parked, is available for the use of those who pay the fee. Thus, because plaintiffs were charged to enter the park and then they used it for a recreational purpose, defendant is not protected from liability under the recreational use law.

Accordingly, the court remanded the case for further proceedings.

Plaintiffs' Counsel

Scott M. Chapman, Lewiston, Idaho