MEMO To: Bill Wamer From: David A. Sexton Re: Kentucky Recreational Use Statute Date: April 29, 2005 This memo is in follow-up to recent discussions we have had concerning the possibility of portions of the “New Albany Bridge” being used for recreational purposes. ‘As we discussed, and as you observed in an earlier e-mail, “[tJhe chief stumbling block has always been the railroad’s understandable concern about its liability to users ~ either on foot, or on bicycles.” As will be explained below, Kentucky's Recreational Use Statute, KRS 411.190, is one mechanism which could be utilized to address the liability concems of the railroad. Al fifty states have Recreational Use Statutes, which provide protection to landowners who allow the public to use their land (or structures and equipment) for recreational purposes. The statutes enacted in the various states fall into roughly four different variations of the Model Recreational Use Act (the “Model Act”) proposed by the Council of State Governments in 1965. The four variations of the Model Act fall into the following categories: the Model Act with coverage enlarged; the Model Act with coverage narrowed; the Model Act with Statement of Purpose and other changes; and the Model Act essentially unchanged. As the Supreme Court of Kentucky has observed, “Kentucky has, along with fifteen other states, adopted the model act essentially unchanged.” Coursey v. Westvaco Corporation, 790 $.W.2d 229, 231 (Ky. 1990). As the Court went on to explain, “the purpose of the statute is to encourage property owners to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Id, See also, KRS 411.1902). Kentucky’s statute has been held not to be violative of Sections 14 or 54 of the Kentucky Constitution, Sublett_v. United States, 688 S,W.2d 328 (Ky. 1985). Further, statutes in other states “have consistently withstood attack upon various constitutional grounds.” Midwestem, Inc. v. Northen Kentucky Convention Center, 736 $.W.2d 348, 351 (Ky.App. 1987) Pursuant to the broad definition of “land” contained in Kentucky's statute, a railroad bridge would easily fall within the scope of the statute. “Land”, for purposes of the recreational use statute, is defined as “land, roads, water, watercourses, private ways and buildings, structures, and machinery or equipment when attached to the realty; ....”, KRS 411.190(1)(a). In addition, the proposed use of the bridge for walking, running and cycling would fall within the definition of “recreational purpose” contained in the statute as such punpose “includes, but is not limited to, any of the following, or any combination‘Memo to: Bill Wamer April 29, 2005 Page 2 thereof: fishing, swimming, boating, camping, picnicking, hiking, bicycling, horseback enjoying historical, archaeological, scenic, or scientific sites; ....”. KRS 411.190(1)(a). ‘The pertinent parts of the recreational use statute which would provide protection for the owner of the bridge are KRS 411.190(3) and (4): (3) Except as specifically recognized by or provided in subsection (6) of this section, an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on the premises to persons entering for such purposes. (4) Except as specifically recognized by or provided in subsection (6) of this section, an owner of Iand who either directly or indirectly invites or permits without charge any person to use the property for recreation purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose; (b) Confer upon the person the legal status of an invitee or licensee to whom a duty of care is owed; or (©) Assume responsibility for or incur liability for any injury to person or property caused by an act or omission of those persons. Kentucky's recreational use statute provides at KRS 411.190(6): (©) Nothing in this section limits in any way any liability which otherwise exists: (a) For willful or malicious failure to guard or wam against a dangerous condition, use, structure, or activity,‘To: Bill Warner April 29, 2005 Page 3 For the railroad to come within the protection of the statute there must be “proof that the landowner knows that the public is making recreational use of his property, and proof of some words, actions or lack of action on his part from which it can be reasonably inferred that he intended to permit such use of his property.” Coursey, supra at 232. Of course, the intent of the railroad could be easily established and memorialized by way of a lease agreement or memorandum of an understanding between it and the appropriate entity such as the Louisville Metro Government and/or the Waterfront Development Corporation, for instance Of course, the Recreational Use Statute would provide protection as well for any governmental entity which would take over the portions of the bridge dedicated to, or eased for, recreational purposes and uses. The statute has routinely been applied to protect governmental entities from liability. City of Louisville v, Silcox, 977 8.W.2d 254 (Ky-App. 1998) (City did not act maliciously or willfully to impose liability); Page v, City of Louisville, 722 S.W.2d 60 (Ky.App. 1986) (Metro Parks not liable to injured ballplayer); Midwestern, Inc. v. Norther Kentucky Community Center, 736 $.W.2d 348, (Ky.App. 1987) (City and manager were “owners” for purposes of statute). Finally, I do wish to note one potential limitation on the applicability of the recreational use statute to shield the railroad from liability. As noted earlier herein, the recreational use statute provides that no duty of care exists (other than for malicious or willful conduct) for persons who enter the property “for recreational purposes.” KRS 411.190(3). If a person entered the property, in this instance came onto the bridge, for other than “recreational purposes” KRS 411.190 may not provide the desired limitation of liability, For instance, a petson could conceivably come onto the bridge by walking or cycling not for the purpose of engaging in a recreational pursuit or activity but as simply @ commuter on the way to or from work. In such instance, the person is arguably not using the bridge for “recreational purposes” and the duty of care the railroad owes to the person may not be the very limited one established by KRS 411,190 — merely to refrain from engaging in “malicious” or “willful” conduct. I could find no reported Kentucky decisions addressing this sort of situation. Cases from other jurisdictions seem to go both ways. For instance, in Lasky v. City of Stevens Point, 582 N.W.2d 64 (Wis.App. 1998) a pedestrian walking in a city park on the way to a bakery and barbershop was deemed to be engaged in a “recreational activity” within the meaning of Wisconsin's recreational use statute. However, it was held in Smith v. Southern Pacific Transp. Co,, 467 So. 2d 70 (La.App. 1985) that a driver involved in an accident on a street which ran through a city park was not engaged in recreational activities such that the recreational use statute would apply. L hope this memo will be of some assistance. Of course, if you need any additional research concerning this issue please let me know.