Two liability experts, Dr. Ron Kaiser and Dr. Brett A. Wright of George Mason University's Center for Recreation Resources Policy, conducted a review of state statutes and selected court cases from across the nation for the U.S. Soil Conservation Service. They found that private landowners who allow open access to their property enjoy near absolute immunity from liability for recreational injuries based on state recreational use statutes.

 

They found that "...landowners allowing free access to their property have no obligation to inspect the property to discover hidden dangers, warn recreationists of hidden dangers, keep the property safe for recreationists' use or provide assurance of safety to those users. That means these users, such as hunters, fishermen or others, will likely be responsible for any injuries or other harm suffered on private land, Kaiser said."

 

In addition, Drs. Kaiser and Wright identified a total of only 380 appellate cases in the 50 states involving recreational statutes in the ten-year period 1982-1992. These cases involved both publicly and privately-owned land whose owners were generally not found responsible for any injuries; the "success rate" for the plaintiffs was only 23 percent.

According to the Alaska State Parks & Outdoor Recreation Department, 1992 Recreation Preference Survey, nearly 95 percent of Alaska residents rate hiking and walking as their second favorite activity. Walking, jogging, and bicycling are the outdoor activities most frequently enjoyed by the residents. Fishing (first ranked), hunting, canoeing, dog mushing, snowmobiling, cross-country skiing, and other outdoor activities which depend on trails are also important activities to residents and visitors.

While many trails are located on publicly owned land, other trails cross private property with or without the property owner’s permission. Because land status and uses can easily change, many private and public groups are working to dedicate routes for existing trails and to protect land for future trails.

Liability insurance premiums for commercial recreational providers have risen in the last decade but appear to be fueled by the fear of the unusual multi-million dollar lawsuits experienced in the medical and product liability fields. However, expert opinions from around the nation say the "so-called liability crisis" is more mythical than real; landowners who allow public access to their property enjoy near absolute immunity from liability for recreational injuries as determined by their state recreational use statute.

Alaska's recreational use statute, AS 09.65.200, "tort immunity for personal injuries or death occurring on unimproved land" (attached), as amended in 1988, grants immunity to landowners for personal injuries or death suffered by recreationists. This applies to rural, urban or semi-urban lands and specifically includes "trails".

The statute was enacted in 1980 and was intended to limit liability to landowners to encourage them to open up their land to recreational users. The statute provided uncompensated owners of 'unimproved land' immunity from tort liability for injuries resulting from a natural condition of the unimproved property. Partly initiated by Native groups whose lands were increasingly being traversed, the 1988 amendment expanded the scope of immunity by stating that a suit can only be brought against a landowner for reckless or intentional misconduct.

The statute's primary weakness is that it specifies immunity to liability only on "unimproved land". Any efforts to maintain the pathway, especially by a landowner, would likely not be considered an improvement if the "improvement" is designed primarily to protect recreational users rather than to increase the value or usefulness of the land for the benefit of the property owner. Alaska's recreational use statute is less advantageous to both the public recreationist and to the property owner than most the statutes in effect around the nation.

Because outdoor recreation is popular in Alaska, several entities are working to expand liability protection for the landowner. The National Parks Service, State Department of Natural Resources (DNR), the City of Valdez, Municipality of Anchorage, and others are considering legal and legislative strategies for expanding recreational opportunities both within and outside of the restrictions of this statute.

One of the most significant efforts has been spearheaded by the State Office of Parks and Outdoor Recreation which is working to propose a bill that insures the private landowner who grants a conservation easement automatic immunity from liability. Called "An Act relating to the liability of landowners for civil damages for certain acts or omissions occurring on lands", the bill is expected to be presented during the next legislative session. If this legislation is passed, private property owners who allow public use of their property may be encouraged to place part of their land holdings into conservation easements to guarantee immunity from liability.

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