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Public access to land for recreational use raises concern about the possibility of visitor injuries and the potential for the owners or managers of the land to then be held liable. Several Pennsylvania statutes provide overlapping layers of protection from such liability.
Allowing the public to use land for outdoor recreation—whether for hiking, bird watching, fishing, hunting, or other activity—raises concern about the possibility of a visitor getting injured and the potential for the owners or managers of the land to then be held liable.
The Pennsylvania General Assembly has enacted several laws to encourage landowners of all sorts—individuals, families, businesses, nonprofits, local governments—to make their property available for public recreation. These laws also benefit holders of easements and leaseholders. Additional statutes add protection to state and local governments. This guide reviews these laws in brief.
In summary, Pennsylvania law favors the opening of land for recreational and related uses by complementing common law defenses with substantial statutory defenses. Public landowners (state and local government entities and agencies) enjoy a particularly robust set of interlocking protections, resulting in immunity from many claims and strict limitations on the rest.
WeConservePA reviews other defenses for landowners, easement holders, and lessees in the guide Reducing Liability Associated with Public Access.
The purpose of Pennsylvania’s Recreational Use of Land and Water Act (“RULWA”)[1] is to encourage landowners to make their property available for public recreation. RULWA limits owners’ liability for personal injury and loss of property, whether the alleged problem is blamed on the owners or on recreational users of the land.
Under common law principles, when a landowner permits others to enter upon their land, the landowner owes certain duties of care.[2] RULWA limits the traditional duty of care that owners owe to people entering their land. It provides that landowners have no duty to keep their land safe for recreational users and have no duty to warn of dangerous conditions. This immunity from liability does not protect landowners who willfully or maliciously fail to warn of dangerous conditions.[3] RULWA protections also apply to holders of trail and other easements, leaseholders, and others who have control of a premises.
The types of public recreation covered by RULWA include “any activity undertaken or viewed for exercise, sport, education, recreation, relaxation or pleasure.”
The act goes on to state that this:
includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, recreational noncommercial aircraft operations or recreational noncommercial ultralight operations on private airstrips, camping, picnicking, hiking, pleasure driving, snowmobiling, all-terrain vehicle and motorcycle riding, nature study, water skiing, water sports, cave exploration and viewing or enjoying historical, archaeological, scenic, or scientific sites.
The act does not provide this protection if visitors are charged for admission. However, there are exceptions to this general rule; for example, RULWA allows for charges that are used by the owner exclusively for conserving or maintaining the land.
WeConservePA’s Overview of Pennsylvania’s Recreational Use of Land and Water Act provides a brief (two-page) description of RULWA. WeConservePA’s expansive Guide to Pennsylvania’s Recreational Use of Land and Water Act provides a fuller description of RULWA protections and rules for receiving those protections. It includes brief reviews of court cases in which RULWA was raised as a defense.
Pennsylvania’s Equine Activity Immunity Act offers an additional layer of protection for those supporting horseback riding.[4] The act applies to any “individual, group, club or business entity that sponsors, organizes, conducts or provides the facilities for an equine activity…” Equine activities include recreational riding and riding instruction, a number of commercial endeavors (such as boarding and breeding), and also competitive activities. The act, however, has been found to exclude liability stemming from track racing.[5]
Somewhat contrary to its title, the act does not offer blanket immunity for landowners who facilitate or permit equine activity. Rather, it (1) specifies that the defense of “knowing voluntary assumption of risk” is available where an injured adult[6] alleges negligence in connection with an equine activity, and (2) instructs the use of specific signage to preserve that defense.
The legal defense of “knowing voluntary assumption of risk” involves demonstrating that an injured plaintiff understood the inherent dangers in an activity and proceeded of their own volition.
Signage must be “conspicuously posted” on the premises on signs at least three feet by two feet, in two or more locations, stating the following:
You assume the risk of equine activities pursuant to Pennsylvania law.
The act provides that it is to be narrowly construed.[7] For example, while installing signage in conformance with the act may provide a defense to injuries that are among those inherent to equine activities (kicks, falls, etc.), it is less likely to affect liability resulting from unsafe equipment or conditions on the premises.[8] (In regard to conditions, remember that RULWA provides additional liability protections; the applicability of the acts is not mutually exclusive.)
Pennsylvania’s Rails to Trails Act[9] addresses several matters regarding the conversion of abandoned railroad rights-of-way into recreational trails and their use. With respect to these rail-trails, the act explicitly extends RULWA’s liability protection to “any person, public agency, or corporation owning an interest in land utilized for recreational trail purposes pursuant to this Act”[10]—a potentially broader group of interests than RULWA’s applicability only to fee owners, tenants, lessees, occupants, or “person[s] in control.” Additionally, the act explicitly provides a limitation of liability similar to that found in RULWA, but expanded to include not only those with direct interests in the land on which a trail is constructed, but owners of adjoining properties as well. The act provides that:
an owner or lessee who provides the public with land for use as a trail under this act or who owns land adjoining any trail developed under this act owes no duty of care to keep the land safe for entry or use by others for recreational purposes, or to give any warning to persons entering or going on that trail land of a dangerous condition, use, structure or activity thereon.[11]
The act does not protect parties who charge a fee for access to or use of a trail. The act’s protection of adjacent landowners is also not available for those who invite trail users onto their land for commercial purposes (e.g., equipment rental businesses, cafes, brewpubs, etc.). Like RULWA, protection does not extend to instances resulting from a “willful or malicious failure to warn or guard against a dangerous condition, use, structure or activity.”[12]
There are no published court decisions that hinge on the liability protections of the Rails to Trails Act. This may indicate the act’s deterrent effect on potential claims, together with its broad coincidence with the long-established protections of RULWA.
In addition to RULWA, the Equine Activity Immunity Act, and the Rails to Trails Act, another layer of protection is available only to state and local governments. The Commonwealth of Pennsylvania can assert immunity or limited liability under the Sovereign Immunity Act[13] and local governments can similarly assert immunity or limited liability under the Political Subdivision Tort Claims Act (the “Tort Claims Act”).[14] Both acts cap monetary damages and limit the kinds of claims that can be brought.
The Tort Claims Act limits the liability of local agencies in Pennsylvania for damages due to injury to person or property by (1) limiting the types of government action that can give rise to liability, and (2) capping the damages available to a plaintiff. A “local agency” includes counties, cities, boroughs, townships, school districts, and municipal authorities.[15]
The act does not eliminate liability altogether. It begins by offering total immunity, followed by exceptions. The exceptions apply where an injury is caused by the negligence of the local agency or an employee thereof acting within the scope of their official duties. Particularly relevant to public lands offered for recreational use, notable exceptions include negligence in the “care, custody or control” of real property, and “dangerous condition[s] of trees, traffic signs, lights, or other traffic controls . . .”
As discussed above, the Tort Claims Act begins with blanket immunity, followed by an exception for certain claims of negligence. Immunity remains intact for claims asserting government actions constituting willful or malicious conduct. Accordingly, the Tort Claims Act protects government entities from claims that would otherwise fall within RULWA’s exception for “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” As stated by the Commonwealth Court, “the immunities provided by the RULWA and the Tort Claims Act are complementary such that any willful or malicious conduct that is exempted from the protection of the RULWA is protected by the Tort Claims Act.”[16] Therefore, wherever RULWA protection is available for government-owned recreational land, the combined effect of Tort Claims Act and RULWA is total immunity.[17]
RULWA provides expansive and powerful protection for public owners of land open for recreational use, but it does not shield a landowner from all premises-related liability on land open for recreational use. A local agency may conceivably find itself named in a lawsuit with facts that avoid immunity under RULWA[18] and support a finding of negligence within an exception to the blanket immunity of the Tort Claims Act. In any such scenario, the Tort Claims Act still provides a substantial baseline of protection.
The Commonwealth of Pennsylvania and its instrumentalities (for example, state-controlled agencies and authorities) can assert immunity under the Sovereign Immunity Act. Like the Tort Claims Act, the Sovereign Immunity Act begins with blanket immunity, followed by exceptions for certain negligent actions.
Among the exceptions are “dangerous conditions” on real estate owned by the Commonwealth or its agencies, but only if the applicable entity received prior written notice of the condition, had sufficient time to correct the issue, and failed to do so.
Because the Sovereign Immunity Act allows liability only for negligent acts, its combined effect with RULWA affords similar robust protection from claims by recreational users of land.
For landowners or possessors of land engaged in agricultural production, several statutes offer limitations on liability resulting from public access.
Pennsylvania’s Agricultural Immunity statute provides immunity for landowners and other possessors of land who invite the public onto their property for the purpose of “picking and purchasing” agricultural products, colloquially known as “u-pick” operations.[19] Immunity does not extend to claims resulting from conditions on the land where (1) the condition involved an “unreasonable risk of harm,” (2) the landowner knew, or should have known, about the condition, and (3) the landowner failed to take correct the condition or provide adequate warning.
The act defines “agricultural products” broadly to include products of a farm, nursery, grove, orchard, vineyard, garden, and apiary, including but not limited to trees and firewood.”
In 2021, Pennsylvania enacted the Agritourism Activity Protection Act.[20] The act provides limited liability protection for providers of “agritourism activities,” which are agriculture-focused activities provided on agricultural land to entertain members of the public. The act protects providers of these activities regardless of whether a fee is charged for admission. To benefit from the act’s protection, providers must post signage including language specified by the act and enter a written agreement with language specified by the act. The act’s protection does not extend to conduct amounting to gross negligence, intentional conduct, criminal conduct, or reckless failures to warn or protect, and excludes overnight accommodations, weddings, concerts, and food/beverage service.
[1] 68 P.S. § 477-1 et seq. RULWA was enacted in 1966, and amended in 2007, 2011, and 2018 to enhance protections for owners.
[2] Individuals entering the land of another upon the landowner’s invitation or consent (whether explicit or implied) are characterized as either “invitees” or “licensees” under Pennsylvania common law. A person entering the land of another without the consent of the landowner is generally considered a “trespasser.” The landowner owes different standards of care depending on the status of the visitor. See Palange v. City of Philadelphia, 640 A.2d 1305 (Pa. Super. Ct. 1994).
[3] In effect, the standard of care owed to visitors under RULWA is the standard applicable to trespassers under Pennsylvania common law.
[4] 4 P.S. §§ 601-606.
[5] Calderon v. Phila. Park Casino & Racetrack, 2014 Phila. Ct. Com. Pl. LEXIS 394.
[6] The act has no effect on claims of liability related to injured children.
[7] Notably, the act also undoes a previous common law defense available to the possessor of a horse who bites or injures someone. The common law required an injured person to prove that that the possessor of the horse knew that the horse had displayed “vicious” tendencies in the past. The act explicitly overrules that standard, providing that “[e]vidence of viciousness of the equine shall not be required before a possessor of an equine shall be subject to liability for harm.”
[8] A U.S. District Court ruled that the act did not bar a claim for injuries resulting from a broken stirrup provided by an equine facility. Melendez v. Happy Trails and Riding Center, Inc., 2016 WL 5402745
[9] 32 P.S. § 5611 et seq.
[10] 32 P.S. § 5621(b).
[11] 32 P.S. § 5621(a).
[12] 32 P.S. § 5621(d)(3).
[13] 42 Pa.C.S. § 8521 et seq.
[14] 42 Pa.C.S. § 8541 et seq.
[15] See 42 Pa.C.S. § 8501 (definition of “local agency”); 42 Pa.C.S. § 102 (definitions of “government unit” and “government agency”); 1 Pa.C.S. § 1991 (definition of “political subdivision”).
[16] Clark v. Schuylkill Canal Ass'n, 282 A.3d 388 (Pa. Cmwlth. June 13, 2022) (table) (unpublished memorandum) (citing Lory v. City of Philadelphia, 674 A.2d 673 (Pa. 1996)). See Section 8542(a)(2) of the Tort Claims Act, 42 Pa. C.S. §8542(a)(2).
[17] Clark at *21 (citing Wilkinson v. Conoy Township, 677 A.2d 876 (Pa. Cmwlth. 1996)) (“If the municipality acts willfully or maliciously, it may be held liable under the RULWA, but will be immune under the Tort Claims Act, and if the municipality acts negligently, the governmental unit may be held liable under the Tort Claims Act, but will be immune under the RULWA.”).
[18] For example, a person may be injured while present on recreational land for professional, as opposed to recreational purposes. A plaintiff may allege a local agency’s failure to maintain an artificially created condition, such as a playground or swimming pool.
[19] 42 Pa.C.S. § 8339.
[20] 3 Pa. Stat. § 2603.
