In many states, landowners and their agents cannot be sued for deaths or injuries on property they have opened to the public for recreational activities like swimming, hiking, fishing, camping, and horseback riding.  This is known as “recreational immunity”, which only applies if the landowners open the property to the public free of charge.  The definition of an “agent” is often unclear, but a recent Wisconsin case gives some guidance.

In that case, a landowner hired a contractor to trim trees along a lakefront path it had opened to the public.  A member of the tree-trimming crew cut a large branch from a tree that landed on Jane Westmas, who was walking on the path with her son.  She was fatally injured.  Her husband, who was also her estate administrator, sued the tree company, claiming its carelessness caused her death and caused emotional distress to their son, who saw his mother die.

The contractor argued in court that because it was an “agent” of the property owner, the Wisconsin recreational immunity law protected it from responsibility.  A lower court judge agreed and dismissed the case.

However, the Wisconsin Supreme Court reversed the decision, finding that because the property owner did not directly control the contractor’s means and methods, the contractor did not count as an “agent” who was protected by recreational immunity.

Of course, the application of these concepts of recovery or defenses may work differently in Virginia than they do in Wisconsin.  In many cases, there may be something a landowner may have done or not done that constitutes negligence on his or her part, which would allow for recovery by an injured party.  If you want to learn more, contact attorney Harry F. Bosen, Jr.