Landowner’s liability to recreational trespassers
Traverse City and northern Michigan are blessed with hundreds of miles of trails and open lands. These trails and areas are used by runners, hikers, bikers, skiers, snowmobilers, and all sorts of other users. Often the boundary lines between public and private lands are not explicit. Landowners near trails or state lands are faced with a question of liability—if they tolerate use of their property, technically a trespass, will they be liable if the user/trespasser is injured? Following the adoption of a statute in 1994, the answer to that question is usually “no.”
As background, a landowner is liable for injuries caused to other people by conditions on the land; this is called premises liability. Michigan law sorts users into three categories: trespasser, social licensee, and business invitee. Generally, a trespasser enters without permission, a licensee is a social guest visiting with permission, and business invitee is on the property with permission and for the business benefit of the landowner. A trespasser is owed the lowest duty of care, and a business invitee the highest.
Normally a landowner is not liable to a trespasser unless the landowner is grossly negligent or commits a willful or wanton act that injures the trespasser. However, a higher standard is owed in situations involving children attracted to the land or, importantly, in situations where the landowner knows of, or should reasonably know of, the trespasser’s presence. If the landowner knows that trespassers “consistently intrude” on a certain part of the property, the landowner must use “ordinary care to prevent injury to the trespasser arising from active negligence.” See MCL 554.583(2)(c). This creates a conundrum for owners of lands which are frequently used for recreational users—do they have to actively exclude such users or face liability if they fail to prevent injuries?
Fortunately, section 73301 (MCL 324.73301) of the Natural Resources and Environmental Protection Act (NREPA) comes to the rescue of these well-intentioned landowners. It provides protection to landowners who tolerate recreational use of their property and landowners whose property is used to access public trails. The statute raises the standard back to the usual duty owed toward trespassers: gross negligence or willful and wanton misconduct of the owner. This act coves users who engage in “fishing, hunting, trapping, camping, hiking, sightseeing, motorcycling, snowmobiling, or any other outdoor recreational use or trail use”. The statute covers both users who have permission and those who do not. Note, however, that the protection disappears if the landowner charges money or other consideration for the recreational use. In that instance, the user would be a business invitee. Also, the statute does not condone or allow trespassing; it merely shields landowners who allow recreational use from heightened liability duties.
To conclude, if you own land which is frequently used for recreation, you do not have to exclude users from your land out of concern for liability (though you certainly have the right to exclude if you wish). Your only duty owed to users is to refrain from gross negligence.