LWDN Quick Flash ~ Oct 2010
The Tennessee Recreational Use Statute and Incentivizing Conservation
The Nitty Gritty Dirt Band is a classic country-folk-rock group that formed in the mid-1960's. The band has changed names and lineups several times - first, NGDB, then just "The Dirt Band." Little known fact, they provided backup to Steve Martin's "King Tut" as the "Toot Uncommons." Yet the music remains delightfully simple: "Mr. Bojangles", "American Dream," "Make a Little Magic." After becoming "Nitty Gritty" again in the 80's, the band released "Fishin' in the Dark."1 The premise of the song is a young beau planning on taking his girl fishing at night. The setting:
Across the field where the creek turns back
By the old stump road
I'm going to take you to a special place
That nobody knows
Later in the song:
And it don't matter if we sit forever
And the fish don't bite
We'll jump in the river and cool ourselves
from the heat of the night
In the event the young lovers were to sustain some type of injury as a result of this escapade in Tennessee, the same statute which would immunize the subject landowner from tort liability also serves to at least partially incentivize keeping the land open and unimproved for the enjoyment of our young couple. In drafting statutes designed to wholly or partially immunize certain individuals from tort liability, the Tennessee General Assembly has generally focused on negating one of the five elements in our well-known negligence framework.2 The Tennessee "recreational use" statute codified at Tenn. Code Ann. § 70-7-101, et seq. is one such example, but is unique in that it "provides that a landowner neither owes a duty of care to keep land or premises safe for certain recreational users nor is such a landowner required to give any warning to recreational users for any hazardous conditions which might exist on the property."3 Unlike statutes which may, for example, dictate the proximate cause of a certain type of injury,4 the Tennessee recreational use statute thus eliminates any legal duty which may otherwise exist on the part of landowners falling within its protection. If its conditions are met, the statute answers the "duty" question in a negligence analysis and precludes consideration of any other negligence element in a particular case.5 This "no duty" rule contained within the recreational use statute provides:
(a) The landowner, lessee, occupant, or any person in control of land or premises owes no duty of care to keep such land or premises safe for entry or use by others for such recreational activities as hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, hiking, sightseeing, animal riding, bird watching, dog training, boating, caving, fruit and vegetable picking for the participant's own use, nature and historical studies and research, rock climbing, skeet and trap shooting, skiing, off-road vehicle riding, and cutting or removing wood for the participant's own use, nor shall such landowner be required to give any warning of hazardous conditions, uses of, structures, or activities on such land or premises to any person entering on such land or premises for such purposes, except as provided in § 70-7-104.6
The immunity afforded by Tenn. Code Ann. § 70-7-102 applies with equal force to private landowners, the State of Tennessee, and the United States,7 and leaves open the possibility that individuals engaged in other, non-enumerated activities are "recreational land users" to whom no duty of care is owed. As explained by the Tennessee Court of Appeals, "[t]he statute employs the phrase 'such recreational activities as' in a manner that implies that the list is neither exclusive nor exhaustive. . .Accordingly, activities similar to those explicitly enumerated in section 102 may also fall within the purview of the recreational use statute."8 The law has consequently been held, for example, to bar claims arising from falls on sidewalks,9 collapsing non-functioning cannons,10 fly fishing accidents,11 bicycling,12 and caving.13
While the statute is "designed to encourage owners to open their land for recreational use,"14 the relatively few Tennessee cases interpreting its "no duty" provision have almost exclusively hinged on the activity in which the injured party was engaged as opposed to the characteristics of the land on which the injury occurred.15 The recreational use statute therefore creates an unusual legal situation in that a defendant's duty to maintain his or her own land in a safe condition depends on what someone else may or may not actually be doing on that land.16 The test for whether the statute absolves a landowner of potential liability accordingly consists of two inquiries: "(1) whether the activity alleged is a recreational activity as defined by the statute; and, if so, (2) whether any of the statutory exceptions or limitations to the immunity defense are applicable." 17 The recreational use statute therefore provides a limited incentive for land conservation in that most of its enumerated activities such as "hunting, fishing, trapping, camping, water sports, white water rafting, canoeing, [and] hiking" are generally performed on unimproved land. The statutory definition of "land" or "premises" as used in Tenn. Code Ann. § 70-7-102, moreover, seems to demonstrate a preference for potential defendants who have kept their land in its natural, unimproved state. While the definition of "land" and "premises" includes "all real property," "waters," and "trees" in addition to "building[s] or structure[s]," it specifically excludes "the landowner’s principal place of residence and any improvements erected for recreational purposes that immediately surround such residence, including, but not limited to, swimming pools, tennis or badminton courts, barbecue or horseshoe pits, Jacuzzis, hot tubs or saunas."18
While the "no duty" section of the statute does not contain any further distinction between injuries which may be caused by natural conditions and those which may be caused by man-made conditions, the statute's other prerequisites for landowner immunity also tend to create an inventive for conservation. For example, the immunity afforded by Tenn. Code Ann. § 70-7-102 is subject to an important exception in the event an injured plaintiff is able to establish that a landowner was guilty of something more than simple negligence. Pursuant to Tenn. Code Ann. § 70-7-104, the immunity afforded to landowners by the "no duty" rule does not “limit the liability that otherwise exists” for acts representing gross negligence or "willful or wanton conduct that results in a failure to guard or warn against a dangerous condition."19 In construing the statutory exceptions to the "no duty" rule, however, Tennessee courts have been more willing to characterize known man-made conditions as those of which failure to warn constitutes gross negligence. In Sumner v. United States, for example, the federal district court for the Middle District found that the United States military's failure to install adequate, legible signage around an "impact area" harboring unexploded ordnances constituted gross negligence, and thus the military could not avail itself of immunity under the recreational use statute despite the fact that the plaintiff was arguably "sight-seeing" at the time he was injured by a "dud" anti-tank round.20 The Sumner case thus represents an example of gross negligence stemming from a landowner's actual notice of a dangerous man-made condition to which immunity under Tenn. Code Ann. § 70-7-102 does not apply.
The Sumner case contrasts sharply with the Tennessee Court of Appeals' decision in Morgan v. State, a case in which an intoxicated woman fell to her death from a bluff at a Fentress County state natural area.21 In holding that the State of Tennessee was not grossly negligent under the recreational use statute in failing to install certain improvements around the bluff, the Court noted that "[e]recting warning signs, installing lighting along the trails, fencing the entire area, or installing guard rails, barriers, or other sorts of buffers, while perhaps appropriate at Dollywood, would have been entirely unwarranted and unnecessary at a natural area such as Colditz Cove."22 While notice of the bluff’s height was undoubtedly not an issue in the Morgan case, the State of Tennessee was better able to avail itself of immunity under Tenn. Code Ann. § 70-7-102 because the injurious condition was a natural one. Despite the fact that the State had the authority23 and ability to install the safety improvements which the plaintiff in Morgan argued were necessary, the Court found that failing to implement "unwarranted and unnecessary" improvements in a natural area was not gross negligence sufficient to cost the State immunity under the recreational use statute.
In sum, the conservation incentive provided by the plain language of the Tennessee recreational use statute is limited in that the statute makes tort immunity contingent upon the activities of the injured party instead of the characteristics of a potential defendant’s property. The exceptions to the "no duty" rule, however, seem to encompass a preference for unimproved land. The recreational use statute is therefore unique in Tennessee in that it encourages natural land use in the context of a tort rule. Ideally, it thus gives all of us more opportunities to go fishin' in the dark.
1 "You and Me Goin' Fishin' in the Dark" is the famous opening line of the chorus in the Nitty Gritty Dirt Band's "Fishin’ in the Dark."
2 "A negligence claim requires proof of the following elements: (1) a duty of care owed by the defendant to the plaintiff; (2) conduct by the defendant falling below the standard of care amounting to a breach of that duty; (3) an injury or loss; (4) cause in fact; and (5) proximate or legal cause." West v. East Tennessee Pioneer Oil Co., 172 S.W.3d 545, 550 (Tenn. 2005) (citations omitted).
3 Cagle v. U.S., 937 F.2d 1073, 1075 (6th Cir. 1991).
4 For example, the Tennessee Dram Shop Act provides in part that "the consumption of any alcoholic beverage or beer rather than the furnishing of any alcoholic beverage or beer is the proximate cause of injuries inflicted upon another by an intoxicated person." Tenn. Code Ann. § 57-10-101 (1986).
5 See generally Hurd v. Flores, 221 S.W.3d 14, 22 (Tenn. Ct. App. 2006) ("It is only after this Court ascertains whether [defendants] owed a duty of care in this case that the other elements of the [plaintiffs'] negligence claims can be addressed.").
6 Tenn. Code. Ann. § 70-7-102 (1963).
7 See, e.g., Morgan v. State, No. M2002-02496-COA-R3-CV, 2004 WL 170352, *4 (Tenn. Ct. App. Jan. 27, 2004) (explaining that the statute was amended in 1987 to expressly include property owned by governmental entities); Cagle, 937 F.2d 1073.
8 Parent v. State, 991 S.W.2d 240, 243 (Tenn. 1999) (holding that "[b]icycling is by its very nature a recreational activity and is comparable to the activities enumerated in § 102.").
9 Matthews v. State, No. W2005-01042-COA-R3-CV, 2005 WL 3479318 (Tenn. Ct. App. Sept. 14, 2005)
10 Cagle, 937 F.2d at 1074.
11 Spence v. Tennessee Valley Authority, No. 3:05-0519, 2006 WL 1416759 (M.D. Tenn. May 17, 2006)
12 Parent, 991 S.W.2d at 243.
13 Bishop v. Beckner, 109 S.W.3d 725 (Tenn. Ct. App. 2002).
14 Cagle, 937 F.2d at 1075.
15 See, e.g., Cagle, 937 F.2d at 1075 – 1076 (discussing plaintiff's argument that "playing on a cannon" is not a specifically-listed recreational use under Tenn. Code Ann. § 70-7-102);
16 This criterion contrasts sharply with the general rule that a defendant's own activities establish the duty of care which he or she may owe others. For example, defendants engaged in ultrahazardous activities such as "the storage of explosives or harmful chemicals, and the harboring of wild animals" may be held strictly liable to persons injured by those activities, regardless of the care exercised by the defendant. See generally Leatherwood v. Wadley, 121 S.W.3d 682, 699 (Tenn. Ct. App. 2003).
17 Rewcastle v. State, No. E2002-00506-COA-R3CV, 2002 WL 31926848, *3 (Tenn. Ct. App. Dec. 31, 2002) (citing Parent, 991 S.W.2d at 243). The Court of Appeals in Matthews also noted that a plaintiff may "defeat this affirmative defense in essentially three ways: (1) prove that the defendant is not a 'landowner,' (2) prove that the injured party was not engaged in a recreational activity, or (3) prove that the landowner's conduct fits within one of the three exceptions in Tenn. Code Ann. § 70-7-104." Matthews, 2005 WL 3479318 at *4.
18 Tenn. Code Ann. § 70-7-101 (1963).
19 Tenn. Code Ann. § 70-7-104 (1963).
20 Sumner v. U.S., 794 F.Supp. 1358 (M.D. Tenn. 1992).
21 Morgan, 2004 WL 170352 at *2.
22 Id. at *6.
23 See, e.g., Tenn. Code Ann. 11-14-106 (1971) (dictating the scope of permissible improvements to Class I and Class II natural areas).
This article was included in the Tennessee Bar Association Environmental Law Section Newsletter on September 22, 2010.