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New Way Around the "No Trespassing" Sign

by Bob Anderton

Ever wonder why there are "no trespassing" signs in the middle of nowhere? Many landowners fear liability if someone is injured on their land. This means fewer areas for hiking, biking and other fun stuff.

The Washington Supreme Court recently clarified that those who let others access their land for free have little to worry about.

Under the common law, landowners owe a different duty of care depending upon the legal status of the person on their land. One can be an invitee, a licensee or a trespasser. Landowners have the fewest duties to a trespasser and the most to an invitee.

Historically, people were considered invitees when they entered land for recreational purposes whether or not they were actually invited. This meant that landowners had a duty to perform inspections, to discover dangerous conditions, and to use "ordinary care" to keep their land "reasonably safe."

While not especially onerous, these duties make people nervous, and "No Trespassing" signs are cheap.

Legislation enacted in 1967 limited landowner liability. Over the years, this law has changed a bit, but the intent to encourage access to land for recreation remains.

RCW 4.24.210 says:

Any public or private landowners ... who allow members of the public to use them for the purposes of outdoor recreation ... without charging a fee ... shall not be liable for unintentional injuries to such users.

This statute flipped the common law rule. Now landowners are rarely liable for injured recreational users.

In September of 2001, the Washington Supreme Court clarified this law in Davis v. State of Washington. Davis rode his motorcycle off a 20 to 30 foot cliff in natural sand dunes owned by the state in which people are permitted to use recreation vehicles. Davis landed on his back and suffered paraplegia and blindness. Davis had been following tracks and there was an optical illusion that made it look as though there was no drop off. There were no warning signs, despite the fact that the area was mostly flat.

The Court explained that an injured recreational user must carry a heavy burden of proof.

The Court ruled that, while the tracks leading to the cliff were artificial because they were a human-made alteration, this alteration did not transform the natural state of the thing that caused the injury--namely, the cliff. The test for liability is now whether "the artificial external circumstance so changed a natural condition [that] it is unreasonable to distinguish the two...."

This ruling should diminish potential liability to landowners and make them more willing to allow access. If there are areas of questionable safety, warning signs might better protect landowners from liability than no trespassing signs.

People should have access to private land for recreation. The Davis decision makes good public policy and is a logical interpretation of the statute.

To suggest a topic needing random wisdom, contact Bob at (206) 262-9290 or at bob@andertonlaw

Lawyer Joke
Q: What do you get when you cross a librarian with a lawyer?
A: All the information you need--but you can't understand a word of it.