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New Way Around the "No Trespassing" Sign
by Bob Anderton
Ever wonder why there are "no trespassing" signs in the middle ofnowhere? Many landowners fear liability if someone is injured ontheir land. This means fewer areas for hiking, biking and other funstuff.
The Washington Supreme Court recently clarified that those who letothers access their land for free have little to worry about.
Under the common law, landowners owe a different duty of caredepending upon the legal status of the person on their land. One canbe an invitee, a licensee or a trespasser. Landowners have the fewestduties to a trespasser and the most to an invitee.
Historically, people were considered invitees when they entered landfor recreational purposes whether or not they were actually invited. This meant that landowners had a duty to perform inspections, todiscover dangerous conditions, and to use "ordinary care" to keeptheir land "reasonably safe."
While not especially onerous, these duties make people nervous, and"No Trespassing" signs are cheap.
Legislation enacted in 1967 limited landowner liability. Over theyears, this law has changed a bit, but the intent to encourage accessto land for recreation remains.
RCW 4.24.210 says:
| Any public or private landowners ... who allow members of the publicto use them for the purposes of outdoor recreation ... withoutcharging a fee ... shall not be liable for unintentional injuries tosuch users. |
In September of 2001, the Washington Supreme Court clarified this lawin Davis v. State of Washington. Davis rode his motorcycle off a 20to 30 foot cliff in natural sand dunes owned by the state in whichpeople are permitted to use recreation vehicles. Davis landed on hisback and suffered paraplegia and blindness. Davis had been followingtracks and there was an optical illusion that made it look as thoughthere was no drop off. There were no warning signs, despite the factthat the area was mostly flat.
The Court explained that an injured recreational user must carry aheavy burden of proof.
The Court ruled that, while the tracks leading to the cliff wereartificial because they were a human-made alteration, this alterationdid not transform the natural state of the thing that caused theinjury--namely, the cliff. The test for liability is now whether "theartificial external circumstance so changed a natural condition [that]it is unreasonable to distinguish the two...."
This ruling should diminish potential liability to landowners and makethem more willing to allow access. If there are areas of questionablesafety, warning signs might better protect landowners from liabilitythan no trespassing signs.
People should have access to private land for recreation. The Davisdecision makes good public policy and is a logical interpretation ofthe statute.
To suggest a topic needing random wisdom, contact Bob at (206)262-9290 or at bob@andertonlaw
Lawyer Joke
Q: What do you get when you cross a librarian with a lawyer?
A: All the information you need--but you can't understand a word of it.
