The Sallee Case & Iowa’s Recreational Use Statute
Sept. 19, 2013
Landowner liability for on-farm visitors and Iowa’s recreational use statute received a great deal of attention in 2013. In the Sallee v. Stewart opinion the Iowa Supreme Court addressed several distinct issues in Iowa’s recreational use statute, which limited the reach of the protections offered by the statute. This raised significant concerns from landowners, insurers, and others. The Iowa Legislature quickly reformed the statute, attempting to expand protection and clarify what activities are included as “recreational.” (Iowa Code Section 461C (2014)).
The discussion below is intended to provide some guidance on the current state of Iowa’s Recreational Use Statute – discussing issues that have been clarified by the recent ruling and corresponding legislation as well as raising issues that remain ambiguous.
Recreational Use Statute Basics
Recreational Use Statutes have been adopted in all fifty states. The purpose is to increase availability of private land for recreational use by the public. These laws generally provide landowners some liability protection for accidents that occur on their property when allowing people to use the property for recreational purposes. These statutes are fairly consistent from one state to the next on a few issues. In Iowa, and most other states, they do not shield landowners from liability for acts and omissions that are willful or malicious and do not provide protection if the landowner charges money for the use of the land. There are other elements that are not so clear cut and differ from one state to the next. These are discussed in greater detail below.
Sallee v. Stewart
In February 2013, the Iowa Supreme Court issued its opinion in Sallee v. Stewart, a case addressing Iowa’s recreational use statute. Sallee was a chaperone for a kindergarten class visit to the Stewarts’ dairy farm. The Stewarts set up different stations for the kids to visit at the farm. The stations included a pen for riding a horse, a place to feed a calf from a bottle, and a place to view a tractor. The children then viewed several cows and a bull. From there, the children were guided to a barn to play in the hayloft.
At the hayloft, Matthew Stewart asked Sallee to go into the hayloft to supervise the children. He assured her the ladder would support her weight and did not advise her of holes in the loft that were covered with hay bales. Stewart had placed the bales on the holes and tested that they would support his weight. While Sallee was standing on a hay bale, the bale gave way, she fell through the hole, and she broke her wrist and leg.
Sallee filed a negligence claim against the Stewarts, and the Stewarts asserted that Iowa’s recreational use statute shielded them from liability. The district court agreed with the Stewarts that Sallee was engaged in recreational activity and that the statute protected the Stewarts. Sallee appealed and the court of appeals agreed the recreational use statute applied to the activities, but because the Stewarts set up stations and guided the class they took themselves out from under the protection of the statute as they essentially acted as tour guides.
The Supreme Court of Iowa granted review and vacated the appellate decision and reversed the district court judgment. Unlike the district and appellate courts, the Iowa Supreme Court found that Sallee’s injuries were not incurred while engaged in an activity covered by the recreational use statute. The Iowa Legislature then responded, largely to public outcry, attempting to expand the statute’s protection. Below is an overview of key issues addressed in Sallee and the reform legislation. While the practical result for farmers and landowners and the extent of protection from liability now provided largely remains unclear, the information below should help facilitate a greater awareness of potential risks.
Key Issues for Iowa’s Recreational Use Statute
1. No Protection if Charging Money for Recreational Activities
As mentioned previously, Iowa expressly excludes any protection if the landowner charges a fee to the recreational user. This is a common and, for the most part, non-controversial exception. Some states do have “Agri-tourism” statutes that limit liability for operators of agri-tourism events. Iowa currently does not.
2. No Protection for Willful or Malicious Acts or Omissions
The other exception to the liability protection is for acts or omission that are willful or malicious. This means that landowners will not be protected if they intended to cause harm or disregarded know or obvious risk that is so great as to make it highly probably to cause harm.
3. Activities Included as a Recreational Use?
What activities are included under the Recreational Use Statute is critical in determining whether the liability of landowners is limited. Iowa’s Recreational Use Statute provides a lengthy list of activities that fall under the protection of the statute.
“Recreational purpose” means the following or any combination thereof: hunting, trapping, horseback riding, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycling, all-terrain vehicle riding, nature study, water skiing, snowmobiling, other summer and winter sports, educational activities, and viewing or enjoying historical, archaeological, scenic, or scientific sites while going to and from or actually engaged therein.
The Court in Sallee pointed out that the Iowa legislature in creating and modifying its recreational use statute did not use expansive language but rather stated “’recreational purpose’ means the following or any combination thereof …” (emphasis added). The Court noted the law not use phrases such as “includes but is not limited to,” and emphasized that Iowa, while basing its statute on the 1965 Model Recreational Use Statute, specifically removed the expansive language. The Court interpreted this as meaning the liability protection afforded by the law is limited to only those activities specifically listed in the statute.
The 2013 Legislature in reforming the statute still did not add any expansive language but rather retained the narrow language that includes the express list of activities. It did, however, provide instructions for a broad interpretation of the statute. The following clause was added: “The provisions of this chapter shall be construed liberally and broadly in favor of private holders of land to accomplish the purposes of this chapter.” So, while the legislature did not address the expansive language issue that the court emphasized as limiting the scope of the statute, it does now mandate a broad interpretation of the law. While the retention of the narrow list of activities and the addition of a liberal and broad construction clause may seem at odds, it is reasonable to assume the legislature intended to retain protection only for those uses expressly listed in the statute. However, those listed uses should be interpreted as inclusive of any activities that could be construed as a listed use. Below are examples.
The Sallee opinion addressed the meaning of “nature study”concluding that nature study “may well include outdoor activities such as bird watching, butterfly observation, and the study of pond flora and fauna ….” but specifically excludes “frolicking in a hay loft” as nature study. It also positively references a Nebraska case that found observing livestock at a county fair is not nature study. Under the new law, it remains to be seen if observations of domestic animals, crops, or other agricultural activities are considered nature study.
The Court interpreted “other summer sports” as those similar in character to the other activities listed in the statute, which all relate to outdoor activity. The Court also stated that sport is not merely a “pleasurable activity or a source of diversion,” indicating it must be some type of commonly recognized and, perhaps, somewhat organized activity. Again, these narrow interpretations were under the pre-2013 modifications. While the legislation did not address all of the Sallee Court’s concerns about broad interpretations of phrases like “other summer sports,” it is possible the additional language requiring liberal construction could result in a broader interpretation of the listed activities, though not entirely new additions to the listed activities.
Significantly, the legislation did add “educational activities” to the list of recreational uses. This is of great important to the many individuals, organizations, and agencies that provide agricultural education to farmers and the general public.
4. Protection for Indoor Activities
Another issue addressed by the Court and the Legislature is the extent to which indoor activities are covered by the statute. The Court in Sallee concentrated on the outside nature of the activities listed and interpreted the intent of the legislature to apply the statute’s protection to structures or buildings only “when the structure itself is part of or incidental to the underlying recreational use.” Even prior to the Legislature’s modification, the statute included “structures and buildings” as included within the meaning of land, but the Court clarified that structures and buildings are included only as they relate to use for outdoor recreational activities. This means if there was a visitor on the land in an activity in a building or structure and that activity was not “incidental” to a protected outside use, it almost certainly does not have immunity. For instance, the act of horseback riding is a listed activity and saddling and otherwise preparing a horse for riding is necessarily incidental to that activity and likely occurs within a structure or building.
The reform legislation did slightly modify the language involving indoor activities by adding the words “exterior and interior” of buildings and structures. As the Court already recognized under the previous provisions that activities taking place within buildings could be protected if incidental to the outside activities, this modification by itself may not be particularly important. However, the addition of the clause requiring a liberal and broad construction of the law’s provisions could result in an interpretation that any activities that fall under a listed use are protected regardless of whether related at all to an outdoor activity. For instance, does the addition of “educational activity” include participation in any event that increases a person’s knowledge or awareness regardless of the location or topic?
5. Access to the General Public
The Sallee Court and the Legislature also addressed the issue of whether recreational use statutes are intended to apply to any users of the property or whether they’re intended to only apply if the land is made available to the general public. In discussing the issue, the Court referenced a previous Iowa Supreme Court case (Peterson v. Schwertley, 460 N.W.2d 469 (1990)) in which the Court held the statute does apply to property that is not open to the public. While the Court was critical of the earlier case indicating that extending the statutory protections to property that is not open to the public defeats the purpose of the statute, it expressly stated it was not confronting whether Peterson is good law.
The Iowa Legislature, however, was clear on this point. A new clause in the statute defines “Land” as including “land that is not open to the general public.” This means that landowners may limit access to a few individuals and still receive the statute’s protections.
6. Protection for Activities Related to a Listed Activity
The Court discusses the relationship that must exist between the activity engaged in when the injury occurred and the list of activities covered by the statute in order for the statutory protection to apply. Sallee makes clear that there must be an “obvious relationship.” It does not necessarily mean that the injured party must have actually been engaged in the covered activity at the time of injury. Rather, the Court said the activity should be a “necessary incident” to the listed activity. Again, the act of horseback riding is a listed activity and saddling and otherwise preparing a horse for riding is necessarily incidental to that activity.
The Legislature includes similar language in the statute, stating “Recreational purpose’ is not limited to active engagement in such activities, but includes entry onto, use of, passage over, and presence on any part of the land in connection with or during the course of such activities.”
7. Landowner Interaction with Recreational Users
This is an important element the Legislature made a point of addressing after Sallee. The appellate court’s opinion in the Sallee case and the concurrence of a single justice in the Iowa Supreme Court’s opinion found that the farmers could be held liable because they acted as “tour guides” by setting up different stations and supervising the activities of the visiting kindergarten class. It’s worth pointing out that this was not the opinion of the Iowa Supreme Court. The majority Supreme Court opinion does indicate that the statute’s protection only exists for premises liability. This means the statute only relates to accidents that occur due to conditions of the property, not negligent actions taken by landowners or their employees. For example, someone tripping in a hole is a premises liability issue, while someone injured by the operation of farm equipment is not.
In reforming the statute, the Legislature added the following language: “[A] holder of land does not owe a duty of care to others solely because the holder is guiding, directing, supervising, or participating in any recreational purpose … undertaken by others on the holder’s land.” This provides protection for landowners that are present with, and even directing, the recreational users on their land. Its important to point out that this language does not necessarily expand the protection beyond premises liability, and landowners may still be liable for their negligent operation of equipment or other actions that cause harm.
Protecting Your Farm From Liability for Accidents
There are many issues left ambiguous by the 2013 Legislature’s modification to Iowa’s Recreational Use Statute. Landowners should be cognizant of possible remaining limitations of the recreational use statute and should explore how to minimize exposure to liability through alternative means.
1. Be Careful.
The best way to avoid liability is to avoid negligent acts or omissions. Even without the protection of the recreational use statute, landowners are not liable for any accident that occurs on their land. There must be some negligence or intentional act on the part of the landowner. Significantly, avoiding negligence does not mean that you necessarily avoid a lawsuit, which can be more expensive, time consuming, and stressful than the injury itself. This is where insurance can be helpful and is discussed next. Taking care to avoid accidents does, however, mean you can limit the likelihood of a lawsuit and be more likely to prevail in such a suit.
Again, if the activity that is taking place on the property is expressly listed in the statute or incidental to such an activity, the recreational use statute protections apply, and the owner can only be found liable for a willful or malicious failure to guard against or warn of danger. The Court relates that such a failure only exists where there is a “known or obvious risk” so great that its “highly probable” that harm will follow. Therefore, the Court maintains a fairly high burden for anyone making a claim under the willful or malicious conduct exception to the statute.
If visitors are invited onto the property for activities that are not listed, owners must use reasonable care to inspect the premises of dangers and to make the premises safe or to give warnings of any dangers that are not observable. In short, it’s a good idea to know the condition of the land people will be using and to let everyone know of any dangers upfront.
In regard to trespassers, landowners only owe a duty not to willfully or wantonly cause injury. There is no duty to inspect the property or to give warnings of dangers to trespassers.
2. Talk to an Attorney
Speaking with an attorney will most likely cost money, but the attorney’s services should be viewed as an insurance policy. Attorneys are there to expose risks and address them. These are not often pleasant issues to address but are an essential component for managing risk and ensuring your prepared should things go wrong.
3. Read and Understand Your Insurance Policy
Having insurance that covers the activities taking place on the farm can protect against findings of liability and against the expense of a lawsuit. However, in order to gain this protection, it is essential to ensure the farm liability insurance covers the events you plan to have on your land.
Landowners should talk to their insurance agent and explain exactly what they intend to do and ask that these activities be covered. They should then read the policy and pay very close attention to the policy’s definitions and exclusions. If there is any ambiguity in the language, or if something could be interpreted in more than one way, the owner should ask that it be clarified. Its best to clarify any language within the policy itself, but landowners should also document any conversations with their agent and the explanations provided. If a dispute arises, a court will first look at the language of the policy, but if it is ambiguous, they can look at evidence outside the document to determine the intent of the parties. Courts interpret ambiguities against the party that creates the document, here the insurance company that drafted the policy.
4. Clarify the Purpose and Express Restrictions
Its clear the purpose of the visit can dictate the duty of care owed by the landowner to the visitor. For this reason, if the landowner is wishing to enjoy the protection of the recreational use statute, its important to make clear that the invitation to use the property only extends to activities covered by the statute and that engaging in activities outside of those authorized acts as a trespass. One way to document the limited purpose of the visit is through a waiver.
5. Use Waivers and Releases But Don’t Rely On Them
Waivers can be useful tools for limiting some liability. Consenting adults may authorize waivers for themselves, though not for minor children. Perhaps the greatest benefit from a waiver is simply as documentation that warnings of dangerous conditions are given and that the visitor is aware of these conditions. It can also be used to document the exclusive purpose of the visit as one of those listed in the recreational use statute and that other activities are strictly prohibited.
Again, it is important to speak to an attorney to help assess risks and develop strategies and documents to limit liability as much as possible.