Risks Connected with Recreational Activities

By Rob Anderson, General Counsel to the South Dakota Public Assurance Alliance

Most municipalities and many counties own or operate some type of park, walking trail, campground, or other recreational area. Many of these areas do not involve direct supervision by employees of the municipality or county. For that reason and many others, the type of liability exposure that exists and arises from providing recreational opportunities to users is limited only by your imagination.

In part because of this, the South Dakota Legislature has seen fit to create certain statutory immunities which protect political subdivisions of the State and their employees from most liability arising from the ownership or operation of outdoor recreational areas. Municipalities and counties should be aware of these immunities and their limitations.

SDCL §20-9-20 provides that subject to certain limitations, no political subdivision of the State or its employees have a duty of care to keep land safe for entry or use by others for “outdoor recreational purpose”, or to give any warning of a dangerous condition, use, structure or activity on the land to persons entering the land to engage in outdoor recreational activities.

The term “outdoor recreational purpose” is defined as any of the following activities or any combination: “…hunting, fishing, swimming other than in a swimming pool, boating, canoeing, kayaking, camping, picnicking, hiking, biking, skateboarding, in-line skating, sledding, horseback riding, off-road driving, nature study, waterskiing, team sports, snowmobiling, skiing, climbing, spelunking, para-sailing, hang-gliding, shooting, observing wildlife, viewing or enjoying historical, archaeological, scenic or scientific sites, or engaging in any other form of outdoor sport or recreational activity of any sort.” As you can see, the types of activities listed are extremely broad.

SDCL §20-9-21 goes on to provide that political subdivisions and their employees, by either directly or indirectly inviting or permitting people to use land described for “outdoor recreational purposes”, or by charging a fee for admittance to parks, campgrounds, or other such areas, do not:

“(1)Extend any assurance that the land is safe for any purpose; or (2)Confer upon any person the legal status of an invitee or licensee to whom a duty of care is owed; or (3)Assume responsibility for, or incur liability for, any injury to persons or property caused by an act or omission of the political subdivision of South Dakota, and its employees as to maintenance of the land.”

In summary, owning, maintaining, operating and inviting people to use various recreational areas or to engage in various recreational activities does not expose a municipality or a county or their employees to the type of liability that would otherwise exist, but for these statutes.

However, there are limits to the immunity created by the statutes. SDCL §20-9-22 provides that nothing in the statutes creating these immunities limits any liability which arises:

“(1) For gross negligence or willful or wanton misconduct of the political subdivision of South Dakota, or its employees; and (2)For injuries suffered in any case where the political subdivision of South Dakota, or its employees, have violated a county or municipal ordinance or state law which violation is a proximate cause of the injury.”

You can see that SDCL §20-9-22(2) imposes liability on the part of the municipality or the county, or their employees for violations of law or ordinances. Most of these will be safety or safety-related statutes or local ordinances. An example of a state statute, the violation of which could still expose a municipality, county or township to liability, is a violation of road signing requirements within a park established by the Manual on Uniform Traffic Control Devices. All governmental entities are obligated to follow the MUTCD in the placement of such things as stop signs and other traffic controls. Violation of this ordinance and others could still expose the entity to liability. Subsection (1) makes it clear that gross negligence or willful or wanton misconduct will not be tolerated and can still be the basis for imposing liability.

Exactly what may constitute “gross negligence” or “willful or wanton misconduct” is judgmental to some degree. However, South Dakota courts have defined those terms. Gross negligence is something more than plain negligence and something more than simple failure to exercise ordinary care. It is not necessarily a deliberate and intentional wrongful act, but something very close to that, according to the South Dakota Supreme Court. Willful or wanton misconduct is defined in a similar fashion – something more than ordinary negligence, but less than deliberate or intentional conduct.

Conclusion

Safety should be a foremost concern of all municipalities and counties in regard to the operation and maintenance of recreational activities and areas. If you pay attention to safety concerns in a responsible manner, your municipality, county and employees will be protected from most, if not all, mishaps and injuries that are bound to occur.

Author Note: Robert B. Anderson is an attorney with May Adam in Pierre, SD.

Gov. Daugaard Announces More Than $17.75 Million for Environmental Projects

Gov. Dennis Daugaard says the state Board of Water and Natural Resources has approved more than $17.75 million for water and waste projects.

The $17,751,000 total includes $822,700 in grants and $16,928,300 million in low-interest loans, with $745,000 of the loan total in principal forgiveness.

“I am pleased to announce that this money is available to assist local communities,” said Gov. Daugaard. “Grant and loan awards will result in better drinking water, improved wastewater treatment and enhanced protection of the environment.”

The grants and loans awarded by the board are administered through the Department of Environment and Natural Resources (DENR). For more information on these DENR funding sources visit http://denr.sd.gov/ or call 605-773-3151.

Grants were awarded to: j Haakon County School District, $80,000 grant amendment for geothermal wastewater treatment system upgrades j James River Water Development District, $275,000 grant for water quality improvements in lower James

River and Lewis and Clark lake watersheds j Roberts County, $75,000 grant for construction of a waste disposal cell j Solid Waste Management Association, $15,000 grant for a joint South Dakota and North Dakota solid waste management conference

Loans were awarded to: j Bridgewater, $121,000 loan for Main Street drinking water distribution improvements j Canistota, two loans totaling $474,000 for Main Street utility improvements, which includes $378,000 for sewer lines and $96,000 for waterlines j Elk Point, two loans totaling $799,000 for Rose Street utility improvements, which includes $235,000 for sewer lines and $564,000 for waterlines j Hoven, $50,000 loan for waterline replacement j Keystone, two loans totaling $529,000, which includes $431,000 for wastewater system improvements and $98,000 for well retrofit j Lead, $427,000 loan for water meter replacement j Midland, $225,000 loan for water distribution and storage improvements j Mina Lake Sanitary District, $559,000 loan for wastewater system improvements j Pierre, $1.45 million loan for Hilger’s Gulch sanitary sewer j Sioux Falls, $9.287 million loan that provides $8.838 million for Basin 14D sanitary sewer extension and $449,000 for nonpoint source improvements in the Big

Sioux River basin j Vermillion, $812,000 loan for Prentis Street lift station j Viborg, two loans totaling $711,000, which includes $105,000 for sanitary sewer replacement and $606,000 for drinking water distribution replacement j Waubay, $390,000 loan amendment for treatment pond expansion

Grant and loan packages were awarded to: j AGRAT2 LLC, $322,000 for mattress and box spring recycling expansion that includes a $112,700 grant and $209,300 loan j Raymond, $900,000 for wastewater system improvements that includes a $65,000 grant and two loans totaling $835,000, with $745,000 in principal forgiveness j Viewfield Rural Water Association, $250,000 for water treatment improvements that includes a $200,000 grant and $50,000 loan

The grants, loans and principal forgiveness were awarded from DENR’s Consolidated Water Facilities Construction Program, Drinking Water State Revolving Fund Program, Clean Water State Revolving Fund Program and Solid Waste Management Program.

The Consolidated Water Facilities Construction Program, funded in part by revenues from the Petroleum Release Compensation Tank Inspection fee and the sale of lotto tickets, provides grants and loans for water, wastewater and watershed projects. The Solid Waste Management Program provides grants and loans for solid waste disposal, recycling and waste tire projects. The Legislature annually appropriates dedicated water and waste funding for the Consolidated and Solid Waste programs through the Governor’s Omnibus Water Funding Bill.

The State of South Dakota and the U.S. Environmental Protection Agency fund the Drinking Water State Revolving Fund Program, which provides low-interest loans for public drinking water system projects. The State of South Dakota and the U.S. Environmental Protection Agency fund the Clean Water State Revolving Fund Program, which provides low-interest loans for wastewater, storm water and nonpoint source projects. Principal forgiveness is a subsidy option that results in a reduced loan repayment amount for the borrower.