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June 13, 2013

Wrestling with Liability: Encouraging Climbing on Private Land

Original article by Laura Snider in Winter 09 Vertical Times; summarized and updated by Joe Sambataro

Rick Weber likes to cruise around his 400-acre verdant Kentucky spread, walking the seven-plus miles of sandstone cliffs in Muir Valley to see what the climbers are up toor maybe to catch a belay himself.

Rick and his wife Liz are retired now, and Muir Valley is their nest egg. To lose it in a legal battle over liability, sued over a climbing accident, for example, would be devastating. When the pair bought the property in 2003, they knew they wanted to open it up to fellow climbers, but they needed to make sure they were protected as well. After doing some homework, chatting with the Access Fund, and reading up on state law, Rick was convinced that they could open up their private land under the protection of Kentucky’s recreational use statute. Muir valley climber

“Yes, we’re concerned,” Rick said. “But we’re told that we have a reasonably safe legal position.… We could batten down the hatches and not stick our neck out, but then you don’t get the benefit of sticking your neck out.”

The Webers––being climbers themselves and having bought Muir Valley specifically for its tempting ribbon of sandstone cliffs––are rare in the arena of private landowners who wrestle with whether, and how, to allow climbing on their properties. But the type of land-use statutes that enable the Webers to host 40,000 climber visits a year (and still sleep at night) are not rare. All 50 states have recreational use statues, which are meant to encourage recreation on private lands by shielding the property owners from liability. But these laws vary both in their level of protection and the types of recreation they cover, and the ways that landowners, or their lawyers, interpret these statutes is even more varied.

A diversified approach to managing risks is important. Insurance, management agreements, and leases are just a few additional tools where the Access Fund can lend a hand to landowners and local climbing organizations.  But recreational use statutes are the main building block of liability protection.

Recreational use statutes
In the 1950s, states began to pass laws designed to encourage private landowners to open their properties to hunters, anglers, and other recreationalists by limiting the landowner’s liability. Now, all 50 states have these laws, called recreational use statutes. Not all of the statutes are the same, and they don’t all offer the same level of protection, but they do have general commonalities:

  • Recreational users: Many states list a few types of recreationalists as examples, but the list is usually not inclusive. Some states specifically name rock climbing, but in most states, rock climbing would fit under the general definition of recreation.
  • Fees: In most states, landowners are only protected if they do not charge a fee, although in some cases, fees to cover maintenance or property taxes are allowed.
  • Duty to keep safe: None of the states specifically requires landowners to keep their properties safe for anyone who might use the land to recreate, but in some cases, a “duty to keep safe” isn’t mentioned at all, leaving it more open to interpretation.
  • Duty to warn: Again, none of the states specifically requires landowners to warn people about hazardous conditions, natural features, or activities on their properties.
  • Assurance of safety: In most states, the law says that opening your lands to others does not mean that you’re vouching for the safety of the land or the activity.

Make sure that you check out your own state’s statutes. This is a good starting point. Seek qualified legal counsel in your local jurisdiction.

The ebb and flow of liability protection
Prior to 2005, Illinois’ recreational use statute defined recreation as “any activity undertaken for conservation, resource management, exercise, education, relaxation, or pleasure on land owned by another.” The state legislature changed the law to define recreation as the “entry onto the land of another to conduct hunting or recreational shooting.” In this change to the law, hunting and recreational shootings are not examples; they summed up the entire legal definition of recreation in the state of Illinois for the purpose of the statute.

Eric and Kathy Ulner, who own the Draper’s Bluff climbing area in southern Illinois, discovered this change in 2009 and issued an open letter to the climbing community, expressing that they would need to close their property to climbing access due in part to loss of liability protection.

Draper's Bluff
The Access Fund collaborated with the Illinois Climbers Association to advocate for returning the statute to its original level of protection. After seven years of work by a broad coalition of partners, the bill recently passed both the state House and Senate. Landowners in Illinois can breathe a little easier now that this bill sits before the Governor for signing.

In 2012, local climbers and Access Fund lobbied to add climbing to New Hampshire’s recreational use statute. With the help of a supportive state senator, the bill passed and New Hampshire joined the list of states that specifically name rock climbing in their statute, along with Alabama, Colorado, Tennessee, Vermont, Virginia, Washington, and Wisconsin.  “This is an important piece of legislation for climbers,” says Erik Eisele, Access Fund NH regional coordinator. “It makes it much more likely that a landowner would consider public access to climbing.” 

New tools to boost liability protection
Recreational use statutes and related state laws are only one kind of risk management that landowners can employ. There are other strategies, including waivers, signage, and agreements that can help to mitigate risk. The Access Fund recently gained new capabilities to partner with landowners and local climbing organizations by entering into written agreements that outline stewardship roles and liability protection. Through Access Fund’s liability insurance policy, jointly held agreements can provide additional insured status to both the landowner and local climbing organization involved. Such an agreement may take the form of a recreational lease, access easement, or management agreement that outlines how all the parties will work together to support and manage public use.

Working with local partners, this additional layer of liability protection played a key role in securing access at two crags in 2012—Auburn Quarry in Northern California and Bubba City in the New River Gorge of West Virginia.

The Access Fund works with partners on both a local and national level to advocate for these forms of liability protections across the nation, and to strengthen them where possible. Learn more about the wide array of risk management tools at www.accessfund.org/landownersupport and contact us to explore how a partnership can help open climbing access in your local area.