Q.If people to use my property for recreational purposes, can I be held liable if someone becomes injured?

Except in very limited circumstances, New York law limits the liability of property owners for injuries sustained by others who use the property for recreational purposes.

As a matter of common law, property owners in New York are generally under an affirmative duty to exercise reasonable care to maintain their property in a reasonably safe condition for the protection of all persons whose presence on the property is reasonably foreseeable. The duty to maintain property in a reasonably safe condition applies regardless of whether the property is open to the public or not – as a result, an owner may be held liable for injuries sustained by trespassers or other uninvited persons as a result of unsafe or dangerous conditions, as long as their presence was “reasonably foreseeable” under the circumstances.

The Rules Are Different For Recreational Use

A New York statute – General Obligations Law § 9-103 – modifies these general common law rules in the case of property used for recreational purposes. The statute grants a special immunity to “owners, lessees or occupants” from the usual duty to keep their property safe when individuals use the property to engage in specified recreational activities without charge. By its terms, Section 9-103 only applies where the use of the property is provided free of charge. A property owner loses the protection of the statute if he or she provides access to the property on a commercial basis or otherwise collects any fee for the use, no matter how small.
When the statute applies, a property owner will only be held liable for injuries resulting from a willful or malicious failure to guard against, or warn of, a dangerous condition on the property. Simple carelessness or negligence on the part of the owner will not be enough to meet this standard. To be considered willful or malicious, the conduct must be done both intentionally and without any just cause or excuse. In most cases, this high standard of liability will be very difficult for an injured party to prove.

The list of specified recreational activities includes hunting, fishing, “organized gleaning”, canoeing, boating, trapping, hiking, cross-country skiing, tobogganing, sledding, speleological activities, horseback riding, bicycle riding, hang gliding, motorized vehicle operation for recreational purposes, snowmobile operation, non-commercial cutting or gathering of wood, and the training of dogs. While the statute covers a wide range of activities, there are some notable omissions. For example, swimming – although a common recreational activity — is not included.

Intent of the Activity Matters

One additional consideration is that the activity must be performed with the requisite “recreational intent.” In other words, the same physical activity may or may not fall within the statute depending on the person’s intent and the circumstances at hand. For example, the activity of “walking” might be considered to fall within the meaning of the enumerated activity of “hiking” if it is performed for pleasure or exercise. On the other hand, walking simply for the purpose of traveling to a particular destination – such as cutting across the property as a shortcut home – likely would not be considered to be “hiking” even though the physical activity is exactly the same.The “recreational use” provisions of General Obligations Law § 9-103 apply to all types of properties used by persons engaged in recreational activities, regardless of whether they are present with or without the consent or permission of the owner. An additional provision of Section 9-103, however, applies specifically in the case of farms and provides that the owner of a farm owes no duty to keep the farm property safe for entry or use be a person who enters or remains on the property without consent or privilege (i.e., permission). This statutory protection, therefore, applies regardless of the activity being performed on the property, as long as the property is a farm and the person is present on the property without permission.It also applies regardless of whether or not the property has been posted with “no trespassing” or similar signs. Like any other owner, however, the farm owner may still be held liable for injuries resulting from gross negligence or a willful or malicious failure to guard or warn.

Has someone been injured on your property? You should retain a personal injury lawyer right away to protect yourself and your property from unfair litigation. Make an appointment with our team for a free consultation about your case.