Senate Bill No. 30
(By Senators Tomblin, Mr. President, and Boley,
By Request of the Executive)
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[Introduced January 16, 1995; referred to the Committee
on Education; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact sections one, two and five, article
twenty-five, chapter nineteen of the code of West Virginia,
one thousand nine hundred thirty-one, as amended; and to
amend and reenact section five, article twelve-a, chapter
twenty-nine of said code, all relating to limiting liability
of landowners for recreational or educational use of their
land without charge; and including county boards of
education and other political subdivisions within definition
of landowners whose liability is limited.
Be it enacted by the Legislature of West Virginia:
That sections one, two and five, article twenty-five,
chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and
that section five, article twelve-a, chapter twenty-nine of said
code be amended and reenacted, all to read as follows:
CHAPTER 19. AGRICULTURE.
ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.
§19-25-1. Purpose.
The purpose of this article is to encourage owners of land
to make available to the public land and water areas for military
training or recreational or wildlife propagation purposes and to
further encourage county boards of education or other political
subdivisions of the state to make available to the public land
for community education purposes by limiting their owners'
liability toward persons entering thereon and toward persons who
may be injured or otherwise damaged by the acts or omissions of
persons entering thereon.
§19-25-2. Limiting duty of landowner generally.
Subject to the provisions of section four of this article,
an owner of land owes no duty of care to keep the premises safe
for entry or use by others for recreational or wildlife
propagation purposes or, in the case of a county board of
education or other political subdivision of the state, for community education purposes, or to give any warning of a
dangerous or hazardous condition, use, structure, or activity on
such premises to persons entering for such purposes.
Subject to the provisions of section four of this article,
an owner of land who either directly or indirectly invites or
permits without charge any person to use such property for
recreational or wildlife propagation purposes or, in the case of
a county board of education or other political subdivision of the
state, for community education purposes does not thereby: (a)
Extend any assurance that the premises are safe for any purpose;
or (b) confer upon such persons the legal status of an invitee or
licensee to whom a duty of care is owed; or (c) assume
responsibility for or incur liability for any injury to person or
property caused by an act or omission of such persons.
§19-25-5. Definitions.
Unless the context used clearly requires a different
meaning, as used in this article:
(1) "Charge" means:
(A) For purposes of limiting liability for recreational or wildlife propagation purposes set forth in section two of this
article, the amount of money asked in return for an invitation to
enter or go upon the land, including a one-time fee for a
particular event, amusement, occurrence, adventure, incident,
experience or occasion which may not exceed fifty dollars a year
per recreational participant;
(B) For purposes of limiting liability for military
training set forth in section six of this article, the amount of
money asked in return for an invitation to enter or go upon the
land;
(2) "Land" includes, but shall not be limited to, roads,
water, watercourses, private ways and buildings, structures and
machinery or equipment thereon when attached to the realty, and
property of a county board of education or other political
subdivision of the state;
(3) "Noncommercial recreational activity" shall not include
any activity for which there is any charge which exceeds fifty
dollars per year, per participant;
(4) "Owner" includes, but shall not be limited to, tenant, lessee, occupant or person in control of the premises, or a
county board of education or other political subdivision of the
state;
(5) "Recreational purposes" includes, but shall not be
limited to, any one or any combination of the following
noncommercial recreational activities: Hunting, fishing,
swimming, boating, camping, picnicking, hiking, pleasure driving,
motorcycle or all terrain vehicle riding, bicycling, horseback
riding, nature study, water skiing, winter sports and visiting,
viewing or enjoying historical, archaeological, scenic or
scientific sites or otherwise using land for purposes of the user
including using the property of a county board of education or
other political subdivision of the state for athletic, sporting
or other community events;
(6) "Wildlife propagation purposes" applies to and includes
all ponds, sediment control structures, permanent water
impoundments or any other similar or like structure created or
constructed as a result of or in connection with surface mining
activities, as governed by article three, chapter twenty-two of this code, or from the use of surface in the conduct of
underground coal mining as governed by said article, and rules
promulgated thereunder, which ponds, structures or impoundments
are hereafter designated and certified in writing by the director
of the division of environmental protection and the owner to be
necessary and vital to the growth and propagation of wildlife,
animals, birds and fish or other forms of aquatic life, and finds
and determines that the premises has the potential of being
actually used by the wildlife for those purposes and that the
premises are no longer used or necessary for mining reclamation
purposes. The certification shall be in form satisfactory to the
director and shall provide that the designated ponds, structures
or impoundments shall not be removed without the joint consent of
the director and the owner; and
(7) "Military training" includes, but is not limited to,
training, encampments, instruction, overflight by military
aircraft, parachute drops or personnel or equipment or other use
of land by a member of the army national guard or air national
guard, a member of a reserve unit of the armed forces of the United States or a person on active duty in the armed forces of
the United States, acting in that capacity; and
(8) "Community education" includes, but, is not limited to,
any educational program offered to the community or specific
segments of the community by any entity organized or operating
exclusively for educational or charitable purpose or offered by
any other entity as a charitable or educational program or event
for the benefit of the community and not for the purpose of
making a profit.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 12A. GOVERNMENTAL TORT CLAIMS AND INSURANCE REFORM ACT.
§29-12A-5. Immunities from liability.
(a) A political subdivision is immune from liability if a
loss or claim results from:
(1) Legislative or quasi-legislative functions;
(2) Judicial, quasi-judicial or prosecutorial functions;
(3) Execution or enforcement of the lawful orders of any
court;
(4) Adoption or failure to adopt a law, including, but not
limited to, any statute, charter provision, ordinance, resolution, rule, regulation or written policy;
(5) Civil disobedience, riot, insurrection or rebellion or
the failure to provide, or the method of providing, police, law
enforcement or fire protection;
(6) Snow or ice conditions or temporary or natural
conditions on any public way or other public place due to weather
conditions, unless the condition is affirmatively caused by the
negligent act of a political subdivision;
(7) Natural conditions of unimproved property of the
political subdivision;
(8) Assessment or collection of taxes lawfully imposed or
special assessments, license or registration fees or other fees
or charges imposed by law;
(9) Licensing powers or functions including, but not limited
to, the issuance, denial, suspension or revocation of or failure
or refusal to issue, deny, suspend or revoke any permit, license,
certificate, approval, order or similar authority;
(10) Inspection powers or functions, including failure to
make an inspection, or making an inadequate inspection, of any property, real or personal, to determine whether the property
complies with or violates any law or contains a hazard to health
or safety;
(11) Any claim covered by any workers' compensation law or
any employer's liability law;
(12) Misrepresentation, if unintentional;
(13) Any court-ordered or administratively approved work
release or treatment or rehabilitation program;
(14) Provision, equipping, lawful operation or maintenance
of any prison, jail or correctional facility, or injuries
resulting from the parole or escape of a prisoner;
(15) Any claim or action based on the theory of
manufacturer's products liability or breach of warranty or
merchantability or fitness for a specific purpose, either
expressed or implied;
(16) The operation of dumps, sanitary landfills and
facilities where conducted directly by a political subdivision;
or
(17) The issuance of revenue bonds or the refusal to issue revenue bonds; or
(18) Use of property of a county board of education or other
political subdivision of the state in accordance with the
provisions of article twenty-five, chapter nineteen of this code.
(b) An employee of a political subdivision is immune from
liability unless one of the following applies;
(1) His or her acts or omissions were manifestly outside the
scope of employment of official responsibilities;
(2) His or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a
provision of this code.
(c) The immunity conferred upon an employee by subsection
(b) of this section does not affect or limit any liability of a
political subdivision for an act or omission of the employee.
NOTE: The purpose of this bill is to protect county boards
of education and other political subdivisions of the state from
tort liability for the recreational use, without charge, or
community education use, without charge, of property in
accordance with the immunity granted to private landowners by
article twenty-five, chapter nineteen of the Code of West Virginia, 1931.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.