Can the land owner be held liable for the injuries sustained by a person swimming on their property?

Full Question:

I am a minor and I live in Alabama. Last week, I went to an outdoor recreational land owned by a private person for swimming. I was seriously injured while using the spill way. Can the land owner be held liable for the injuries sustained?
12/28/2016   |   Category: Real Property   |   State: Alabama   |   #29005

Answer:

As a general rule, the landowner owes a duty to trespassers and licensees to refrain from willfully or intentionally injuring them. In Alabama, the laws related to land used for recreational purposes is dealt under ALA. CODE § 35-15-1 through 35-15- 28.

Code of Ala. § 35-15-1 and Code of Ala. § 35-15-2, exempts the owner from duty of care. It reads as follows:

“An owner, lessee or occupant of premises owes no duty of care to keep such premises safe for entry and use by others for hunting, fishing, trapping, camping, water sports, hiking, boating, sight-seeing, caving, climbing, rappelling or other recreational purposes or to give any warning of hazardous conditions, use of structures or activities on such premises to persons entering for the above-stated purposes, except as provided in section 35-15-3.”

Per Code of Ala. § 35-15-2, An owner, lessee or occupant of premises who gives permission to another to hunt, fish, trap, camp, hike, sight-see, cave, climb, rappel or engage in other sporting or recreational activities upon such premises does not thereby extend any assurance that the premises are safe for such purpose nor constitute the person to whom permission has been granted the legal status of an invitee 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 of such person to whom permission has been granted, except as provided in section 35-15-4.

Thus, a person who has a privilege to enter upon land arising from the consent of the possessor of land but who goes on the land for his own purpose rather than for any purpose or interest of the possessor is a licensee. A licensee's entrance on the land carries with it no right to expect the land to be made safe for his reception, but he must assume the risk of whatever may be encountered.

However, the immunity from duty of care is exempted under Code of Ala. § 35-15-3, and Code of Ala. § 35-15-24. Code of Ala. § 35-15-3 reads as:

“This article does not limit the liability which otherwise exists for willful or malicious failure to guard or warn against a dangerous condition, use, structure or activity; or for injury suffered in any case where permission to hunt, fish, trap, camp, hike, cave, climb, rappel or sight-see was granted for commercial enterprise for profit; or for injury caused by acts of persons to whom permission to hunt, fish, trap, camp, hike or sight-see was granted to third persons as to whom the person granting permission, or the owner, lessee or occupant of the premises owed a duty to keep the premises safe or to warn of danger.”

Actual knowledge of owner under § 35-15-24 reads as:

“(a) Nothing in this article limits in any way legal liability which otherwise might exist when such owner has actual knowledge:
     (1) That the outdoor recreational land is being used for non-commercial recreational purposes;
     (2) That a condition, use, structure, or activity exists which involves an unreasonable risk of death or serious bodily harm;
     (3) That the condition, use, structure, or activity is not apparent to the person or persons using the outdoor recreational land; and
     (4) That having this knowledge, the owner chooses not to guard or warn, in disregard of the possible consequences.”

Thus, the property owner is liable to a recreational user only in a very limited circumstance. The landowner only has a duty to warn recreational users against hidden dangers that may cause death or serious harm if the landowner actually knows this harm exists. Therefore, the land owner can be held liable only if he actually knows of the hidden danger that may cause death or serious harm and he, willfully or maliciously, failed to guard or warn against the danger.

Therefore, the land owner may be held liable only if the danger is as grave as to cause death or serious harm and was known to him/her, or s/he willfully or maliciously failed to guard or warn against the danger. Here, the recreational user may not be able to hold the landowner liable as the use of spill way seems to not involve an unreasonable risk of death or serious bodily harm.