The Liability Threat of Recreators on Private Land

Decades ago, the Colorado legislature passed the Colorado Recreational Use Statute (“CRUS”) with the goal of encouraging private landowners to allow recreational use of their land by limiting liability exposure. The statute shields landowners from liability for injured recreators except “for willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.” C.R.S. § 33-41-104(1)(a). I read with interest about a recent case in which an injured cyclist successfully overcame this obstacle and got a multimillion dollar judgment against the United States Air Force. Here is the article, which appeared in the Colorado Sun.

The Colorado Sun article quotes a lawyer who thinks the liability risk is quite low because of CRUS and views the Air Force case as an outlier. However, apparently many landowners have withdrawn their permission for recreators on their land, turning the recreators into “trespassers” under Colorado’s general Premises Liability Act (“PLA”). Under the PLA, a landowner has more protection if the recreators are “trespassers,” because the landowner is liable only for damages arising from a condition on their property where the injury is “willfully or deliberately caused by the landowner.” C.R.S. § 13-21-115. In other words, an injured trespasser cannot recover damages against the landowner unless the landowner purposely hurts them.

I think I agree with the landowners who don’t feel adequately protected by the RUS and are revoking permission for recreational users. When someone is injured badly enough, there still might be a lawyer out there to take the case even if liability is a longshot. That is why the Air Force case got filed. Turning the recreators into trespassers makes liability even more of a longshot.

However, there is one significant downside to revoking permission that landowners should be aware of. Revoking permission might not stop the recreators, especially if the recreators are determined to, for example, bag another fourteener. (Side note – the summits of several of Colorado’s fourteeners lie on private property). If the recreators continue trespassing for a sufficiently long period of time, a public prescriptive easement could result across the private property. If a recreator proves that up in court, the landowner would lose the ability to keep the recreators off. What’s worse, the recreators would then become “licensees” under the PLA, thereby increasing the liability exposure of the landowner significantly beyond the RUS. This puts landowners between a rock and a hard place.