COMMITTEE SUBSTITUTE
FOR
Senate Bill No. 426
(By Senator Plymale)
__________
[Originating in the Committee on the Judiciary;
reported March 3, 1994.]
__________
A BILL to amend and reenact sections three, four and five,
article twenty-five, chapter nineteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended,
relating to limiting the liability of landowners who make
their land available to the public; extending the limitation
to the granting of easements and licenses on land; adding
uses by federal agencies; and modifying certain terms.
Be it enacted by the Legislature of West Virginia:
That sections three, four 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 to read
as follows:
ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.
§19-25-3. Limiting duty of landowner who grants a lease,
easement or license of land to federal, state, county or
municipal government or any agency thereof.
Unless otherwise agreed in writing, an owner who grants alease, easement or license of land to the federal government or
any agency thereof, or the state or any agency thereof, or any
county or municipality or agency thereof, for military training
or recreational or wildlife propagation purposes owes no duty of
care to keep that land safe for entry or use by others or to give
warning to persons entering or going upon the land of any
dangerous or hazardous conditions, uses, structures or activities
thereon. An owner who grants a lease, easement or license of
land to the federal government or any agency thereof, or the
state or any agency thereof, or any county or municipality or
agency thereof, for military training or recreational or wildlife
propagation purposes does not by giving a lease, easement or
license: (a) Extend any assurance to any person using the land
that the premises are safe for any purpose; or (b) confer upon
those 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 a person who enters upon the leased land. The
provisions of this section apply whether the person entering upon
the leased land is an invitee, licensee, trespasser or otherwise.
§19-25-4. Application of article.
Nothing herein limits in any way any liability which
otherwise exists: (a) For willful or malicious failure to guard
or warn against a dangerous or hazardous condition, use,
structure or activity; or (b) for injury suffered in any case
where the owner of land charges the person or persons who enter
or go on the land other than the amount, if any, paid to the
owner of the land by the federal government or any agencythereof, the state or any agency thereof, or any county or
municipality or agency thereof.
Nothing herein creates a duty of care or ground of liability
for injury to person or property.
Nothing herein limits in any way the obligation of a person
entering upon or using the land of another for recreational or
wildlife propagation purposes to exercise due care in his or her
use of such land and in his or her activities thereon.
§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;
(3) "Noncommercial recreational activity" shall not include
any activity for which there is any charge which exceeds $50.00
per year, per participant;
(4) "Owner" includes, but shall not be limited to, tenant,
lessee, occupant or person in control of the premises;
(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;
(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-a of
this code, or from the use of surface in the conduct of
underground coal mining as governed by articles one, two and
three of said chapter, and rules promulgated thereunder, which
ponds, structures or impoundments are hereafter designated and
certified in writing by the director of the division of natural
resources 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 providethat 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 of 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.