New Act Affects Farmer Liability

Bob Sampson, University of Illinois ITCS, Source: A. Bryan Endres (217) 333-1828

Illinois landowners should reassess their options for granting permission for use of their land for recreational purposes, according to a recent University of Illinois Extension study.  "In some circumstances, changes in the Illinois Recreational Use Act made this year by the Illinois legislature may actually increase a landowner's liability risk," said Bryan Endres, a U of I College of Agricultural, Consumer and Environmental Sciences assistant professor of agricultural law who co-authored the study with U of I Extension agricultural law specialist Donald Uchtmann. "This is an important issue for many Illinois farmers who allow hunting and other recreational activities on their property.

"The changes in the law which went into effect in August actually define protected recreational use as hunting and recreational shooting. Landowners opening their land for hiking, swimming, bicycling, bird watching, ATV riding or other activities are not protected from premises liability claims."  The entire report, "New Recreational Use Act for Illinois Landowner Liability: Two Steps Forward, One Step Back," may be accessed online at farmdoc at: http://www.farmdoc.uiuc.edu/.

A 2003 Illinois Supreme Court decision led to the 2005 legislative action. That court decision upset the long-settled expectation on the part of many rural landowners that they had liability protection under the Recreational Use Act. The decision narrowed the scope of that protection by offering such protection only to those landowners who opened their property to the general public for recreational use.  "According to the Court, the Act no longer protected landowners who allowed only invited or selected guests onto their land for recreational purposes," said Endres.

An earlier report by Endres and Uchtmann recommended that rural landowners should reassess the recreational use they allowed of their land. However, the options cited by Endres and Uchtmann at that time are no longer valid in the wake of the new law.  "We believe the new law took two steps forward and one backward," Endres explained, "and this means a new set of options to consider." 

The study's authors believe one "step forward" was the clarification of "public" to include "selected individuals."  "The court decision required landowners to open their land to everyone to receive liability protection. The amendments to the law passed this year by the legislature explicitly overrule this interpretation and establish that landowners may limit access to their property to only selected individuals while maintaining immunity protection under the Act," said Endres.

A second "step forward" eliminates rural residences from liability protection.  "This encourages all landowners to exercise reasonable care in making residential areas safe for permitted visitors," said Endres. "It also furthers the original purpose of the Act--encouraging the opening of true 'open space' for outdoor activities."

However, the "step back" narrows protection by redefining "recreational or conservation purpose" of the land.  "The 2005 amendments drastically reduced the scope of activities that quality as 'recreational or conservation purpose' by including only 'hunting and recreational shooting' as activities that would provide the landowner with immunity," said Endres.  In other words, landowners opening their land are no longer protected from premises liability claims unless the injured person was hunting or engaged in recreational shooting."  Prior to the 2005 amendments Endres and Uchtmann outlined three options for landowners considering granting permission for recreational use on their land.

The first option, based on the 2003 court decision, required landowners to open their land to everyone in order to receive the Act's protection. The 2005 law overrules the court decision but limits protection to those engaged ONLY in hunting or recreational shooting. Accordingly, opening land to the general public is no longer a viable strategy for liability protection.

A second option is to open their lands to almost no one.  "Many landowners adopted this risk management strategy after the court decision, and it may remain the preferred strategy for many," said Endres. "Landowners, however, after the 2005 amendments, are now protected from liability if the injured person was engaged in hunting or recreational shooting even if most prospective users are denied access."

The third option is to open land to selected individuals.  "Again, this will work for hunters and recreational shooters but all other types of recreational users will continue to fall outside the Act's scope of liability protection," said Endres.