Kimberly Ann SALLEE, Individually and as Next Friend of Lucas Gregory Durkop and Maria Christina Rivera, Matthew James Sallee, and James Allan Sallee, Appellants, v. Matthew R. STEWART and Diana Stewart d/b/a Stewartland Holsteins, Appellees.
No. 11-0892.
Supreme Court of Iowa.
Feb. 15, 2013.
Karla J. Shea of McCoy, Riley, Shea & Bevel, P.L.C., Waterloo, for appellees.
Michael L. Mock of Parker, Simons & McNeill, P.L.C., West Des Moines, for amicus curiae Iowa Farm Bureau Federation.
APPEL, Justice.
While accompanying kindergarten students on a field trip to a dairy farm, a chaperone was injured when she fell through a hole in the floor of a hayloft. The chaperone filed a negligence suit against the dairy farm‘s owners. The district court granted summary judgment in favor of the owners on the basis that Iowa‘s recreational use statute barred the chaperone‘s claims. The court of appeals affirmed on the issue of whether recreational use immunity extended to the defendants as landowners, but determined
For the reasons that follow, we conclude the landowners may not avail themselves of the limited protections of the recreational use statute because the chaperone was not engaged in a recreational purpose within the scope of the statute. We further conclude, however, that the plaintiff has not raised a material issue of triable fact as to whether the landowners willfully or maliciously failed to guard or warn against the presence of the hole. Accordingly, we vacate the decision of the court of appeals, reverse the judgment of the district court, and remand the case for further proceedings.
I. Factual and Procedural Background.
A reasonable fact finder viewing the summary judgment record in the light most favorable to Kimberly Ann Sallee, the nonmoving party, could find the following facts. Matthew and Diana Stewart own a dairy farm in Fayette County. Although the Stewarts do not routinely open their farm to the public, classes or individuals wishing to view the farm can schedule a visit. These groups are always accompanied by a member of the Stewart family. If visitors arrive at the farm without a scheduled appointment, they are only permitted to tour the farm if accompanied by the Stewarts.1
The kindergarteners from the Sacred Heart School have been annual visitors for a number of years. During their visit, the students learn about the typical day on a farm. The students are usually chaperoned by their teacher, a few parents, and at least one member of the Stewart family. The Stewarts do not permit the students to go into cattle pens or other places where the Stewarts believe the students might be in danger.
On May 18, 2010, Sallee accompanied her daughter‘s Sacred Heart kindergarten class on a tour of the Stewarts’ farm. As with other visits to the farm, the field trip was scheduled in advance. The Stewarts accompanied the students during their visit and set up three stations for the students. At one station, the students rode a horse in a round pen. At another, the students could feed a calf with a bottle of milk. At the third station, the students could view a tractor. Matthew supervised the entire process, and adults were positioned at each station. Once they had rotated through each station, the students saw several cows and a bull. The Stewarts then guided the group to the barn to allow the students to play in the hayloft.
Matthew asked Sallee and another chaperone to climb into the hayloft ahead of the students so that they could assist the students at the top of the ladder. After Sallee looked at the ladder, Matthew reassured her it was stable enough to support her weight. Sallee followed the other chaperone up the ladder and into the hayloft. The children, another chaperone, the teacher, and Matthew followed. Matthew advised Sallee to keep the students away from the hole in the floor where the ladder was located and warned the students not to climb too high on the bales of hay piled to one side of the loft. While in the hayloft, the children ran around and climbed on the hay bales.
The Stewarts never advised Sallee as to the presence of several hay drops, rectangular holes in the floor of the hayloft through which hay can be thrown to the animals below. Ordinarily, the Stewarts stack bales of hay across the holes when they are not in use to insulate the lower
Sallee filed suit against the Stewarts, alleging their negligence caused her injuries. The Stewarts asserted as an affirmative defense that
The district court concluded the recreational use statute barred Sallee‘s claim. The court reasoned that the Stewarts farm was land within the meaning of the statute. It also found that, while on the farm, the students engaged in horseback riding and nature study, defining terms of “recreational purpose.” Thus, it concluded that Sallee was a recreational user because she was “a chaperone of children‘s activities, which included horseback riding, nature study, and play in the Stewarts’ hayloft.” Finally, the court found that the Stewarts had not willfully failed to guard or warn against the hay drop and that they had not acted recklessly.
Sallee appealed, and we transferred the case to the court of appeals. A majority agreed with the district court that the Stewarts’ property was covered by the recreational use statute. It also found that Sallee was engaged in a recreational purpose. It reasoned that, based on the language of the statute, the legislature intended an expansive definition of “recreational purpose” which encompassed Sallee‘s role as a chaperone because the students had engaged in horseback riding, nature study, and play during their visit to the farm. It also determined the Stewarts had not willfully or maliciously failed to guard or warn against a dangerous condition, use, structure, or activity. However, the majority found that recreational use immunity did not extend to the Stewarts “once they undertook responsibility for guiding the field trip attendees.” One judge on the panel dissented from the majority‘s holding on the premises liability issue on the grounds that Sallee was not engaged in any recreational purpose under the statute because she was present to ensure the proper behavior of the students as a chaperone, not to engage in any recreational activity.
We granted the Stewarts’ application for further review.
II. Standard of Review.
We review the district court‘s grant of summary judgment for correction of errors at law. Ranes v. Adams Labs., Inc., 778 N.W.2d 677, 685 (Iowa 2010). Summary judgment is only appropriate when the record demonstrates “that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.”
III. Background of Recreational Use Statutes.
A. Development of Recreational Use Statutes.
1. Conflicting interests of public safety and increased access to the Great Outdoors. At common law, the extent of a landlord‘s duty to an individual injured after entering the land typically depended upon the injured party‘s status as a trespasser, licensee, or invitee. Koenig v. Koenig, 766 N.W.2d 635, 638 (Iowa 2009). The duty owed to a trespasser was generally limited to avoiding willfully or wantonly careless conduct; the duty owed to a licensee generally included refraining from willful or wanton conduct as well as a duty to warn of hazardous conditions; and the duty owed to an invitee generally included the duties owed to a licensee as well as duties to make the premises safe, to inspect the property for dangerous conditions, and to either repair or warn the invitee of such conditions. See W.L. Church, Private Lands and Public Recreation: A Report and Proposed New Model Act on Access, Liability and Trespass 7-8 (1979) [hereinafter Church]. We have recognized these distinctions in our cases. See Koenig, 766 N.W.2d at 638; Sheets v. Ritt, Ritt & Ritt, Inc., 581 N.W.2d 602, 604 (Iowa 1998), abrogated on other grounds by Koenig, 766 N.W.2d at 643-45. Potential liability was a disincentive for landowners to make their lands available to the public for recreational purposes.
Following World War II, the demand for access to land for outdoor recreational purposes was increasing, but at the same time the amount of land for such purposes was decreasing as the public also demanded more infrastructure, such as “subdivisions, industrial sites, highways, schools, and airports.” Outdoor Recreation Resources Review Commission, Outdoor Recreation for America: A Report to the President and to the Congress by the Outdoor Recreation Resources Review Commission 1 (1962) [hereinafter ORRRC Report]. Further, as Americans became increasingly obese, public health advocates sought to expand the recreational opportunities available to Americans. See Michael S. Carroll et al., Recreational User Statutes and Landowner Immunity: A Comparison of State Legislation, 17 J. Legal Aspects of Sport 163, 163, 178 (2007) [hereinafter Carroll]. Legislatures responded by considering measures that would lessen somewhat the exposure of landowners to liability to persons entering their land for recreational purposes while still providing a degree of protection to the public. See Comment, Wisconsin‘s Recreational Use Statute: A Critical Analysis, 66 Marq. L. Rev. 312, 316 (1983) [hereinafter Wisconsin‘s Recreational Use Statute] (describing recreational use statutes as a “‘tradeoff’ whereby the landowner is relieved of certain tort liabilities when he gratuitously allows members of the public recreational access to his land“).
The literature describing and supporting modification of the common law to promote public recreational use on private land generally focuses on the needs of sportspersons engaged in hunting, fishing, hiking, and similar activities taking place in the Great Outdoors. See, e.g., Tommy L. Brown, Analysis of Limited Liability Re-
2. Early recreational use statutes in the Midwest. Michigan and Wisconsin were the first Midwestern states to enact recreational use statutes.2 See Liability of Landowner to Persons Entering for Recreational Purposes, 1964 Wis. L. Rev. at 705 & n. 2. These statutes were aimed at promoting traditional outdoor recreation and limiting the liability of landowners who opened their lands for public use. For example, Michigan‘s recreational use statute as enacted in 1953 stated,
“No cause of action shall arise for injuries to any person who is on the lands of another without paying to such other a valuable consideration for the purpose of fishing, hunting or trapping, with or without permission, against the owner, tenant or lessee of said premises unless the injuries were caused by the gross negligence or wilful and wanton misconduct of the owner, tenant or lessee.”
Wymer v. Holmes, 429 Mich. 66, 412 N.W.2d 213, 217 (1987) (quoting 1953 Mich. Pub. Acts 201 (emphasis added)), overruled by Neal v. Wilkes, 470 Mich. 661, 685 N.W.2d 648 (2004). Although the Michigan legislation as originally proposed in 1953 applied only to hunting, the Michigan legislature amended it to include fishing and trapping before passage later that year. See id. The Michigan statute was further amended in 1964 to include “camping, hiking, sightseeing, or other similar outdoor recreational use.” Id.
The benefit of these early recreational use statutes was recognized by the Outdoor Recreation Resources Review Commission (ORRRC) in its report published in 1962. Established by Congress in 1958, the ORRRC conducted an extensive nationwide study of outdoor recreation, which resulted in a report entitled Outdoor Recreation for America: A Report to the President and to the Congress. See ORRRC Report at 1-2. The report declares, “This report is a study of outdoor recreation in America—its history, its place in current American life, and its future.” Id. at 1. The ORRRC‘s report indicated that as of 1962 Americans sought a variety of outdoor pursuits, including pleasure driving, walking, boating, swimming, fishing, bicycling, sightseeing, skiing, mountain climbing, picnicking, and skindiving. Id. at 25-26. It estimated that three-quarters of Americans would live in urban areas by the year 2000 and noted that urban dwellers would have the greatest need for (and least supply of) outdoor recreation facilities. Id. at 3. More importantly, the ORRRC predicted the nation‘s demand for outdoor recreation resources would nearly triple by the turn of the century. Id. at 32. The ORRRC made a number of recommendations for the federal and state governments, one of which was the development of a national outdoor recreation policy and the creation of a Bureau of Outdoor Recreation within the Department of the Interior to provide leadership in meeting the demands of outdoor recreation. Id. at 6-7, 121-26. The ORRRC suggested the states “encourage the public use of private lands by taking the lead in working out such arrangements as leases for hunting and fishing, scenic easements, and providing protection for landowners who allow the public to use their lands.”3 See id. at 9.
3. 1965 model act. A few years after publication of Outdoor Recreation for America, the Council of State Governments proposed a model act relating to recreational use, the suggested title of which was “An act to encourage landowners to make land and water areas available to the public by limiting liability in connection therewith.” See Council of State Governments, Public Recreation on Private Lands: Limitations on Liability, 24 Suggested State Legislation 150, 150 (1965) [hereinafter Council of State Governments]. At the time, less than one-third of the states had enacted recreational use statutes. Id. The Council of State Governments recognized the lack of public out-
Recent years have seen a growing awareness of the need for additional recreational areas to serve the general public. The acquisition and operation of outdoor recreational facilities by governmental units is on the increase. However, large acreages of private land could add to the outdoor recreation resources available. Where the owners of private land suitable for recreational use make it available on a business basis, there may be little reason to treat such owners and the facilities they provide in any way different from that customary for operators of private enterprises. However, in those instances where private owners are willing to make their land available to members of the general public without charge, it is possible to argue that every reasonable encouragement should be given to them.
In something less than one-third of the states, legislation has been enacted limiting the liability of private owners who make their premises available for one or more public recreational uses. This is done on the theory that it is not reasonable to expect such owners to undergo the risks of liability for injury to persons and property attendant upon the use of their land by strangers from whom the accommodating owner receives no compensation or other favor in return.
Id. As indicated in the preface, the need was for additional recreational areas “to serve the general public.” While public land was being acquired by government, “large acreages of private land could add to the outdoor recreation resources available.” Id. Thus, the Council of State Governments proposed that the public recre-ational resources of the government should be supplemented by large acreages of private lands for purposes of outdoor recreation.
Section 1 of the 1965 model act declared that its general purpose was “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Id. This first section is consistent with the preface, emphasizing that land and water resources should be made available to the public.
Section 2(c) of the 1965 model act defined “recreational purpose” under the act. It provided:
“Recreational purpose” includes, but is not limited to, any of the following, or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archaeological, scenic or scientific sites.
Id. at 151 (emphasis added). Section 3 of the 1965 model act provided a landowner owed “no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises” to persons who entered the landowner‘s land for recreational purposes. Id.
The 1965 model act did not provide complete immunity to landowners against claims of persons entering the land for recreational purposes. Section 6(a) provided that the statutory immunity would not extend to injuries caused by “willful or malicious failure to guard or warn against a dangerous condition, use, structure, or activity.” Id. Similarly, section 6(b) provided that protection would not extend to landowners who charged recreational users a fee for access to their lands. Id.
Among other things, the 1979 proposed model act provided that “‘[r]ecreational use’ means any activity undertaken for exercise, education, relaxation, or pleasure on land owned by another.” Id. at 29 (section 2(3)). The 1979 proposed model act also allowed owners to collect certain fee-like benefits from recreational users, included government entities in the definition of “owners” under the statute, and limited potential premises liability claims of recreational users to malicious acts or omissions by owners. Id. at 29-30 (sections 2(2), 2(4) and 5(1)).
5. Advocacy of outdoor recreation in the 1980s and 1990s. In the 1980s and 1990s, there were a number of important meetings related to improving outdoor recreational access as well as a growth of literature relating to recreational use statutes. In 1987, the President‘s Commission on Americans Outdoors issued a lengthy report emphasizing the desirability of more outdoor recreational opportunities for Americans. See President‘s Commission on Americans Outdoors, Americans Outdoors: The Legacy, the Challenge, with Case Studies 13-15 (Island Press 1987). With respect to recreational use statutes, the report noted that roughly forty-six states had statutes protecting private landowners when they provided “free public access” to their property for recreational use. Id. at 202. The report suggested expansion of recreational use statutes to include within their scope not just recreational users but “volunteers” apparently associated with recreational use. Id. at 213.
In 1990, a conference featuring participants from twenty-nine states and the District of Columbia promoted the need to obtain more public access to private land. See Proceedings from the Conference on: Income Opportunities for the Private Landowner Through Management of Natural Resources and Recreational Access i, 3 (William N. Grafton et al. eds., 1990). A unifying theme of this meeting, consistent with the available literature, is a repeated emphasis on increasing access to outdoor recreation for members of the public. See id. at 3. The conference sought to instruct private landowners as to the potential profitability of opening their lands for a fee and potential liability associated with doing so. See id. at 60, 341-80. In particular, one commentator noted that “[r]ecre-
In 1999, an assessment of outdoor recreation was published pursuant to the Forest and Rangeland Renewable Resources Planning Act of 1974. See H. Ken Cordell et al., Outdoor Recreation in America: A National Assessment of Demand and Supply Trends vii (Susan M. McKinney ed., 1999). In a chapter entitled “Private Lands and Outdoor Recreation in the United States,” the report noted that “increasing demand for outdoor recreation in America brings into play the question of liability.” Id. at 184 (emphasis added).
B. Definitions of “Recreational Purpose” in Recreational Use Statutes.
Currently, all states have some kind of recreational use statute. While there is considerable variety in the recreational use statutes, the statutes fall into a number of general categories with respect to the manner in which they define “recreational purpose.” These include statutes that define “recreational purpose” using the “includes, but is not limited to” language of the 1965 model act followed by a list of activities. Other statutes are patterned after the 1979 proposed model act. Some statutes are hybrids and contain expansive catchall provisions in addition to a list of activities. Finally, others take a more restrictive approach.
1. Recreational use statutes with a definition of recreational use patterned after the 1965 model act. Many states have recreational use statutes that define “recreational purpose” using a list that “includes but is not limited to” a number of specific outdoor activities. The list of activities specifically identified in the statutes varies from state to state, but usually includes the activities identified in the 1965 model act with the addition of other activities, such as spelunking, hot air ballooning, gleaning, mushing, and hang gliding. See
A number of courts have pointed to “includes, but is not limited to” language to support expansive interpretations of recreational use statutes. See, e.g., Anderson v. Atlanta Comm. for the Olympic Games, Inc., 273 Ga. 113, 537 S.E.2d 345, 348 (2000) (interpreting the “includes, but is not limited to” language of the Georgia statute to mean that the statute encompasses any recreational activity); Jacobsen v. City of Rathdrum, 115 Idaho 266, 766 P.2d 736, 743 (1988) (finding that a child who was “playing” had a recreational pur-
2. Statutes that incorporate the expansive language of the 1979 proposed model act. Some statutes use expansive general language to define “recreational purpose.” These statutes appear to be modeled directly after the 1979 proposed model act. See
As expected, courts have interpreted these statutes broadly. See, e.g., Vaughn v. Barton, 402 Ill.App.3d 1135, 342 Ill.Dec. 769, 933 N.E.2d 355, 363 (2010) (holding the pre-2005-amendment Illinois statute applied to playing baseball and watching baseball); Olson v. Bismarck Parks & Recreation Dist., 642 N.W.2d 864, 871 (N.D. 2002) (holding that winter sledding is a recreational purpose under the North Dakota statute). As the Illinois Supreme Court put it, “‘Exercise, education, relaxation, or pleasure’ encompasses just about every purpose, absent commerce, for which a person is invited onto another‘s property.” Hall, 280 Ill.Dec. 546, 802 N.E.2d at 800. Maryland, interestingly, has chosen to define “recreational purpose” as encompassing “any recreational pursuit,” a definition that may be broader than that of the 1979 proposed model act. See
In particular, Indiana courts have focused on the “or any other purpose” language to hold that the Indiana statute applies when a land user engages in certain activities that are not enumerated. See Cunningham v. Bakker Produce, Inc., 712 N.E.2d 1002, 1006 (Ind.Ct.App.1999) (baseball); McCormick v. State, 673 N.E.2d 829, 833-34 (Ind.Ct.App.1996) (boating); Kelly v. Ladywood Apartments, 622 N.E.2d 1044, 1048 (Ind.Ct.App.1993) (sledding). But, the Indiana Supreme Court also held that a high school student who decorated an abandoned grain elevator and participated in a haunted house performance was not engaged in a recreational activity because those activities were inconsistent with the outdoor activities specifically mentioned in the statute, which included hunting, fishing, swimming, trapping, camping, hiking, and sightseeing. Drake ex rel. Drake v. Mitchell Cmty. Sch., 649 N.E.2d 1027, 1030 (Ind.1995).
4. Recreational use statutes that list recreational uses, but do not include expansive language. Unlike the statutes identified above, a very small number of states comprise a fourth category with a more restrictive approach to defining “recreational purpose.” These states’ recreational use statutes list outdoor activities that qualify as recreational uses, but do not contain the “includes, but is not limited to” language of the 1965 model act or the more expansive definitional language of the 1979 proposed model act. For example, New York‘s statute provides that “an owner, lessee or occupant of premises . . . owes no duty to keep the premises safe for entry or use by others for [specified recreational activities].”
Illinois has taken an even more restrictive approach. Although its recreational use statute originally defined “recreational purpose” using the “includes, but is not limited to” language of the 1965 model act and later included the sweeping definitional language of the 1979 proposed model act, the Illinois legislature severely restricted the statute in 2005 by amending it to apply only to “hunting or recreational shooting.” See 2005 Ill. Laws ch. 70, para. 32.
IV. Iowa‘s Recreational Use Act.
The Iowa recreational use statute was enacted in 1967, two years after publication of the 1965 model act. See 1967 Iowa Acts ch. 149. Although the legislature based the statute on the 1965 model act, the legislature made important alterations prior to its enactment that are relevant to our decision today.
The recreational use act was proposed as H.F. 151 and entitled according to the suggestion of the 1965 model act as “[a]n Act to encourage landowners to make land and water available to the public by limiting liability in connection therewith.” H.F. 151, 62d G.A., Reg. Sess. (Iowa 1967); see also Council of State Governments, 24 Suggested State Legislation at 150. The text and explanation of H.F. 151 as originally proposed were substantially the same as the text and preface of the 1965 model act. Compare H.F. 151, with Council of State Governments, 24 Suggested State Legislation at 150-52. See also City of Cedar Rapids v. James Props., Inc., 701 N.W.2d 673, 677 (Iowa 2005) (“We give weight to explanations attached to bills as indications of legislative intent.“). H.F. 151 spelled out a need to encourage private landowners to make their lands available by defining any potential liability. H.F. 151, explanation. As the legislature explained, “Recent years in Iowa have shown a growing need for additional recreational areas for use by our citizenry.” Id.; accord Scott v. Wright, 486 N.W.2d 40, 42 (Iowa 1992). It further pointed to the roughly one-third of other states that had already passed recreational use laws because it was unreasonable to expect private landowners to risk liability to persons from whom they would receive no compensation in return. H.F. 151, explanation. It stands to reason, therefore, that the legislature modeled the recreational use statute after the 1965 model act. Peterson v. Schwertley, 460 N.W.2d 469, 470 (Iowa 1990).
Although the original proposed definition of “recreational purpose” in H.F. 151 was identical to the definition in the 1965 model act, compare H.F. 151 § 2(3), with Council of State Governments, 24 Suggested State Legislation at 151 (section 2(c)), the legislature adopted two important amendments prior to enactment. One amendment struck the words “includes, but is not limited to, any of” and inserted in lieu thereof the word “means.” Another amendment added “while going to and from or actually engaged therein” to the end of the 1965 model act‘s definition. Thus, the enacted definition of “recreation-al purposes” read as follows:
“Recreational purpose” means the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites while going to and from or actually engaged therein.
Over the years, the legislature has amended this definition various times. In 1971, the legislature added “horseback riding,” “motorcycling,” “snowmobiling,” and “other summer sports.” 1971 Iowa Acts chs. 129-30. In 1988, the legislature amended the statute to include “trapping.” 1988 Iowa Acts ch. 1216, § 46. Finally, in 2012, although subsequent to the incident giving rise to the issue in this case, the legislature amended the statute to include “all-terrain vehicle riding.” 2012 Iowa Acts ch. 1100, § 58.6
Notably, the legislature never added the “includes, but is not limited to” language of the 1965 model act as roughly half of the other states have done. Similarly, it never added a catchall provision, such as those contained in the definitions of Arizona, Colorado, Indiana, Michigan, Montana, New Jersey, New Mexico, Ohio, and Virginia. Further, the Iowa legislature has not adopted the expansive definition of “recre-ational purpose” from the 1979 proposed model act as in North Carolina and North Dakota.
Instead, Iowa‘s statute provides that “‘[r]ecreational purpose’ means the following or any combination thereof,” just as it has since its enactment.
V. State Court Interpretation of Recreational Use Statutes.
A review of cases demonstrates that most state courts have construed recreational use statutes to achieve the legislative purpose of opening lands for outdoor recreation. See Jim Butler, Outdoor
A. General Limitations on the Reach of Recreational Use Statutes.
1. Generally open to the public. One approach to limit the scope of a recreation-al use statute is to require landowners to make their land open to the public generally in order to be entitled to immunity. In the often cited case of Gibson v. Keith, the Delaware Supreme Court held that Delaware‘s statute applied only to landowners who invite or permit without charge the public at large to use property for recreational purposes. 492 A.2d 241, 248 (Del. 1985); see also Herring v. Hauck, 118 Ga.App. 623, 165 S.E.2d 198, 199 (1968); Hughes v. Quarve & Anderson, Co., 338 N.W.2d 422, 427 (Minn.1983); Estate of Gordon-Couture v. Brown, 152 N.H. 265, 876 A.2d 196, 202 (2005); Loyer v. Buchholz, 38 Ohio St.3d 65, 526 N.E.2d 300, 302 & n. 1 (1988); Hanley v. State, 837 A.2d 707, 713-14 (R.I.2003); Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1293 (Utah 1996); Cregan v. Fourth Mem‘l Church, 175 Wash.2d 279, 285 P.3d 860, 863-64 (2012); LePoidevin v. Wilson, 111 Wis.2d 116, 330 N.W.2d 555, 562-63 (1983).
These cases suggest the land in question must be generally available to the public—akin to a privately owned but public park—in order for the immunity to apply.7 See Copeland at 26 (“Recreational use statutes protect landowners from liability claims only if land in question is made accessible to the public.“). Other cases, however, reject this requirement. See Collins v. Martella, 17 F.3d 1, 4 (1st Cir. 1994) (interpreting the New Hampshire statute); Mansion v. United States, 945 F.2d 1115, 1117-18 (9th Cir.1991) (interpreting the California statute); Barrett v. Pa. Gas & Water Co., 631 F.Supp. 731, 733-34 (M.D.Pa.1985); Johnson v. Stryker Corp., 70 Ill.App.3d 717, 26 Ill.Dec. 931, 388 N.E.2d 932, 934 (1979).
2. “True outdoors” test. In a number of cases, state courts have limited the scope of recreational purpose to activities associated with the true outdoors. For example, in Keelen v. State, the Louisiana Supreme Court stated that based on the specified activities in the statute the “legislature envisioned immunity for landowners who offer their property for recreation that can be pursued in the ‘true outdoors.‘” 463 So.2d 1287, 1290 (La.1985). Accordingly, even though the case involved swimming in a pool and swimming was an enumerated activity in the statute, the court held the statute only covered “swimming in lakes, rivers, ponds or other similar bodies of water.” Keelen, 463 So.2d at 1290-91. Similarly, in Wymer the Michigan Supreme Court held that diving into a shallow pond in an urban setting was not among the “outdoor” activities included under the statute. 412 N.W.2d at 219. According to the Wymer court, “The commonality among all these enumerated uses is that they generally require large tracts of open, vacant land in a relatively natural state.” Id. In Quesenberry v. Milwaukee County, the Wisconsin Supreme Court re-
Collectively, these cases stand for the proposition that recreational use statutes are not sweeping immunity statutes that generally overturn ordinary tort liability for all landowners, including urban residents, but are instead more focused statutes that should be interpreted consistently with the underlying legislative purpose of enhancing outdoor recreational opportunities.9 Recreational use statutes are designed to cover situations such as when a recreational user trips over a log, twists an ankle in a ground hog burrow, or falls down a ravine hidden by brush while they are on private property to hunt, fish, hike, or the like, not incidents involving a back-
yard barbecue or a friendly game of hoops in suburbia.
3. Causal link between injury and recreational use. As noted by one authority, “courts have routinely ruled that persons entering land to engage in activities outside the scope of the activities outlined in the statute are not classified as recreational users.” Carroll, 17 J. Legal Aspects of Sport at 173. For instance, in Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc., a chaperone at an educational retreat who slipped and fell on a path was found to be walking on the path in connection with her duties as a chaperone and not for a recreational purpose. 288 Wis.2d 394, 707 N.W.2d 897, 905-06 (Wis.Ct.App.2005). Similarly, in Herman v. City of Tucson, the court found that an employee of a food vendor who was injured while walking from the parking lot toward a band shell to work as a concessionaire at a music festival was not a recreational user within the meaning of the Arizona recreational use act. 197 Ariz. 430, 4 P.3d 973, 979 (Ariz.Ct.App.1999). In Hontert v. Ohio Department of Natural Resources, the court held a plaintiff who was injured inside a building, an historic home, located on recreational land was not a recreational user because her activities in the building consisted of taking a tour, viewing a movie about the premises, and shopping in the gift shop. 61 Ohio Misc.2d 12, 572 N.E.2d 869, 872 (Ohio Ct.Cl.1990). In Harrison v. Middlesex Water Co., the Supreme Court of New Jersey held that an individual seeking to rescue two children who had
Similarly, in Crichfield v. Grand Wailea Co., a land user who asserted she was on a hotel‘s property to eat lunch was injured when she left a footpath to admire the hotel‘s fishpond and statuary. 93 Hawai‘i 477, 6 P.3d 349, 351, 353 (2000). The Hawai‘i Supreme Court held that while there was a genuine issue of material fact as to whether the land user was on the hotel‘s premises for commercial or recreational purposes, the Hawai‘i recreational use statute would not immunize the hotel if she was on the premises for a commercial purpose. Crichfield, 6 P.3d at 359-61. Finally, in Gerkin v. Santa Clara Valley Water District, the court determined that where a party was walking her bicycle over a bridge in order to use a telephone at a nearby market and procure a candy bar, there was a material issue of triable fact as to whether she was “hiking” within the scope of the statute. 95 Cal.App.3d 1022, 157 Cal.Rptr. 612, 615-16 (1979). The court further noted that the “purpose of the journey” should be considered in making this determination. Gerkin, 157 Cal.Rptr. at 616.
At the very least, these cases stand for the proposition that, even if the injured individual is on land that might be available for recreational use, that individual may not have been using the land in a recreational fashion and is therefore removed from the purview of the statute. But see Seminara v. Highland Lake Bible Conference, 112 A.D.2d 630, 492 N.Y.S.2d 146, 148 (1985) (holding that bicycling across property to retrieve forgotten jacket was recreational). Therefore, while horseback riding may have been within the scope of the statute in this case, frolicking in the hayloft may not be. Further, if a party seeking to preserve the safety of children engaged in outdoor recreation through rescue is not within the scope of a recreational use statute as in Harrison, it stands to reason that a chaperone who stands at the ready might not be within the statute either.
Other cases hold that while a trip may have had recreational components, a non-recreational use of land was not covered by the statute. For example, in Smith v. Scrap Disposal Corp., an individual entered the property to fish, which was an activity clearly covered by the California recreational use statute. 96 Cal.App.3d 525, 158 Cal.Rptr. 134, 136 (1979). When leaving, however, the individual was injured when he hopped onto a bulldozer in an attempt to stop his friend from using it. Smith, 158 Cal. Rptr. at 136. The court held that getting onto the bulldozer was not a recreational use within the scope of the statute, even though the injury happened while returning from a covered activity. Id. at 137. Similarly, in James v. Metro North Commuter Railroad, the court held that a man fishing on a railroad bank was not engaged in recreational use when he crossed the tracks in an effort to rescue his dog. 166 A.D.2d 266, 560 N.Y.S.2d 459, 460-61 (1990).
There are, however, contrary cases. See, e.g., Thompson v. Kyo-Ya Co., 112 Hawai‘i 472, 146 P.3d 1049, 1057-58 (2006) (holding a scuba diving instructor was on property for recreational purpose when she tripped on a path while leading a group of students from the ocean to the parking lot); Hafford v. Great N. Nekoosa Corp., 687 A.2d 967, 968-69 (Me.1996) (holding an outfitter supplying canoeing and camping enthusiasts was engaged in activity with a recreational purpose when transporting his staff to pick up his clients’ vehicles). Nonetheless, the individuals in these cases were engaged in a business purpose, not a recreational purpose, and
4. Invited guest exception. Some courts have held that the immunity does not apply to invited guests. For instance, a Georgia appellate court held that the immunity statute did not apply where a neighbor invited friends to his backyard pool without charge. See Herring, 165 S.E.2d at 199. Further, several statutes expressly contain an invited guest exception. See, e.g.,
5. Ancillary structures associated with land. A number of cases have considered whether injuries occurring in buildings and structures fall within the immunity provisions of the acts. One distinction in these cases turns on the nature of the land upon which the building sits. For example, in Rivera v. Philadelphia Theological Seminary of St. Charles Borromeo, Inc., the Supreme Court of Pennsylvania concluded that the words “buildings, structures and machinery or equipment when attached to the realty” in the Pennsylvania recreational use act was limited “to ancillary structures, attached to open space lands made available for recreation and not to an enclosed recreational facilities in urban regions,” such as an indoor swimming pool. 510 Pa. 1, 507 A.2d 1, 15 (1986).
Another distinction turns on the type of activity occurring within the structure. See Drake ex rel. Drake, 649 N.E.2d at 1030 (holding a student who decorated an abandoned grain elevator and participated in a haunted house performance was not present for a recreational purpose); Hontert, 572 N.E.2d at 872 (holding a tour of an historic home, which included an educational movie and a stop at the gift shop, was not a recreational use, even though the home was located on a farm). But see Curtiss v. County of Chemung, 78 A.D.2d 908, 433 N.Y.S.2d 514, 515 (1980) (determining the recreational use statute barred recovery where the plaintiffs’ presence in a storage shed was incidental to their entry to and use of the premises for hunting and hiking).
The bottom line is that while under some circumstances activities within a building might give rise to immunity under the statute, there must nonetheless be activity within the structure that amounts to a recreational purpose.
B. Interpretation of Elastic Recreational Use Provisions.
Even under statutes with catchall provisions expanding the scope of the definition of “recreational purpose,” courts have still required that the land user‘s activities be outdoor recreational purposes in order to trigger immunity. For example, in Villanova v. American Federation of Musicians, Local 16, the court held that the phrase “other outdoor sport, game and recreational activity” did not manifest a legislative intent to bring within the statute‘s ambit recreational activities that were “forms of play, amusement, diversion or relaxation.” 123 N.J.Super. 57, 301 A.2d 467, 468 (N.J.Super.Ct.App.Div.1973); see also Drake ex rel. Drake, 649 N.E.2d at 1030 (decorating a grain elevator and participating in a haunted house performance was not “any other purpose“); Keelen, 463 So.2d at 1291 (holding a swimming pool in a state park is not the type of recreation in the true outdoors); Eschete v. Mecom, 509 So.2d 840, 843 (La.Ct.App.1987) (holding the Louisiana recreational use statute did not bar recovery by a plaintiff who suffered injuries when his boat struck a submerged oil well cribbing in a canal because the inju-
A federal district court took a somewhat different approach to an elastic provision in Fisher v. United States. In this case, a child died while playing on a snowplow during lunchtime on a school field trip. 534 F.Supp. 514, 515 (D.Mont.1982). The question was whether the Montana statute, which provided that recreational purposes included “picnicking” and “other pleasure expeditions,” barred the suit. Id. The court concluded Montana‘s list of recreational purposes was not exclusive and that the statute should be interpreted to include school field trips within its scope. Id. at 515-16. Yet, Fisher has not been widely cited, is inconsistent with a California appellate court‘s decision in Scrap Disposal, and was construing a statute containing an expansive catchall provision. The Iowa statute does not contain such language.
C. Interface Between Tort Law and Recreational Use Statutes.
Courts have also limited application of recreational use statutes to tort claims related to premises liability. The common thread in these cases is that premises liability claims are separate from other negligence claims.
For example, in Klein v. United States a cyclist was struck by an automobile driven by the landowner‘s employee. 50 Cal.4th 68, 112 Cal.Rptr.3d 722, 235 P.3d 42, 44 (2010). The California Supreme Court held that the California recreational use statute related to premises liability, not other tortious conduct, and did not extend to acts of vehicular negligence by a landowner or a landowner‘s employee. Klein, 112 Cal.Rptr.3d 722, 235 P.3d at 44, 49-50. Similarly, in Dickinson v. Clark, a case in which a minor was injured by a wood splitter, the Supreme Judicial Court of Maine held the statute applied only to premises liability claims and not to claims of negligent supervision or instruction. 767 A.2d 303, 305-06 (Me.2001). Moreover, the Wisconsin Supreme Court considered the interface between traditional tort law and a recreational use statute in LePoidevin. There, the plaintiff was injured when she dove from the defendant‘s pier into shallow water. LePoidevin, 330 N.W.2d at 557. The defendant‘s son and son-in-law were allegedly ridiculing, taunting, and challenging the plaintiff to enter the water and grabbed her towel away from her. Id. The court held the active negligence on the part of the defendants took the plaintiff‘s claim outside the scope of the statute. Id. at 560.
VI. Iowa Case Law.
In Peterson, the plaintiff and his friends were swimming in a lake near a large tree. 460 N.W.2d at 470. Land users frequently attached ropes to the tree in order to swing out over the water. Id. at 469. The tree also had pieces of wood nailed to its trunk, which facilitated climbing into the tree. Id. at 469-70. The landowner had attempted to discourage swimming on his property by occasionally removing ropes and the pieces of wood from the tree. Id. He also posted “private property—no trespassing” signs. Id. at 470. The plaintiff, who apparently ignored the posted signs, was paralyzed when he reached for a rope suspended from the tree without the landowner‘s permission, lost his balance, decid-
ed to dive into the water, and hit his head. Id. The question was whether the landowner had an obligation to keep the premises safe for trespassers. Id. at 471. We held that the recreational statute extended to trespassers and immunized the landowner. Id. at 471-72.
In Scott, we considered the relationship between immunity in Iowa‘s recreational use statute and negligence claims. There, a birthday party guest was injured when she fell from a wagon and became trapped beneath it during a hay ride on the defendant‘s property. Scott, 486 N.W.2d at 41. Because the tractor pulling the wagon was driven by the defendants’ daughter, the guest sought to recover on a theory of vicarious liability for the driver‘s negligent operation of the tractor. Id. After a verdict for the plaintiff, the defendant appealed, claiming that the recreational use statute prevented recovery. Id. at 41-42.
We declined to disturb the jury verdict. We noted that nothing in the legislative history of the recreational use statute “suggests a legislative intent to immunize all negligent acts of landowners, their agents, or employees.” Id. at 42. We emphasized that the statute was enacted to serve “a growing need for additional recreation areas for use by our citizenry.” Id. (quoting H.F. 151, 62 G.A., Reg. Sess. explanation (Iowa 1967)). We further stated, “The public‘s incentive to enter and enjoy private agricultural land would be greatly diminished if users were subject, without recourse, to human error as well as natural hazards.” Id.
In reaching the conclusion that the statute was so limited, we emphasized that the language of the recreational use statute is “couched in terms of premises liability.” Id. (emphasis added). In short, the inquiry after Scott is whether the claim is based upon human error or natural hazards. If the claim is based upon natural hazards, it is barred by the recreational use statute, which extinguishes premises liability claims. If, however, the claim is based upon human error, the immunity provided by the recreational use statute has no application.
VII. Analysis of Applicability of Recreational Use Statute.
A. Framework for Interpretation of Iowa‘s Recreational Use Statute. In interpreting a statute, “[w]e consider the objects sought to be accomplished and the evils and mischiefs sought to be remedied.” Klinge v. Bentien, 725 N.W.2d 13, 18 (Iowa 2006) (citation and internal quotation marks omitted). We seek to advance, rather than defeat, the purposes of the statute. State v. Tesch, 704 N.W.2d 440, 451 (Iowa 2005).
When a statute is ambiguous, we look to extrinsic materials to aid in interpretation. State v. Hearn, 797 N.W.2d 577, 586 (Iowa 2011). A statute is ambiguous if reasonable minds could differ as to its meaning. Holiday Inns Franchising, Inc. v. Branstad, 537 N.W.2d 724, 728 (Iowa 1995). Ambiguity may arise from the meaning of particular words in the statute or from the general scope and meaning of the statute when considered as a whole. Carolan v. Hill, 553 N.W.2d 882, 887 (Iowa 1996). If a statute is ambiguous, we may consider, among other matters, “[t]he object sought to be obtained,” “[t]he circumstances under which the statute was enacted,” “[t]he legislative history,” “[t]he common law or former statutory provisions,” “[t]he consequences of a particular construction,” “[t]he administrative construction of the statute,” and “[t]he preamble or statement of policy.”
B. Applicability of General Limitations to Iowa Statute.
1. Public at large. In several places, the Iowa statute, like the 1965 model act, emphasizes that its purpose is to give the public more recreational opportunities. In short, it can be argued that the purpose of the act itself was to establish quasi-parks on private lands where the public would have access in exchange for qualified protection from liability and that the statute should be so interpreted. Such an approach is consistent with the wording of the statute, the purposes of the act, its statutory history, and caselaw in a number of jurisdictions.
Yet, limiting Iowa‘s recreational use statute to lands generally open to the public is inconsistent with Peterson. It could be argued that the result in Peterson is inconsistent with the statutory purpose. If the statute applied to posted property not open to the public, as Peterson suggests, what incentive does it give to a landowner to open his or her lands to the public? The purpose of the statute was plainly to increase the availability of private lands to public recreation. To extend the statute‘s protections to property not open to the public not only fails to promote the purposes of the statute, but tends to defeat them. Further, the language in Peterson was undercut by subsequent language in Scott, where we emphasized that the purpose of the statute was “‘a growing need for additional recreation areas for use by our citizenry.‘” 486 N.W.2d at 42 (quoting H.F. 151, 62d G.A. Reg. Sess. (Iowa 1967)).
Stare decisis, of course, is a relevant consideration here. Because this case can be resolved on other grounds, it is unnecessary to confront the question of whether Peterson is good law.
2. Approach to interpretation of activities covered by Iowa‘s recreational use statute. There can be no question that the evil sought to be addressed by recre-
Nothing in the Iowa statute suggests a different approach. The list of recreational uses strongly suggests that the statute is designed to protect activities traditionally undertaken outdoors. While the statute recognizes that recreational use immunity may apply to appurtenant structures, such immunity for injuries that occur in structures is only applicable when the structure itself is part of or incidental to the underlying recreational use. Indeed, although there are hundreds of cases involving recreational use immunity, almost none of them occur within structures. For those that do, the user was actually engaged in the recreational purpose while inside the structure.
Further, the fact that the legislature has not adopted expansive language in its recreational purpose section provides us with a strong reason for caution. The legislature clearly has not empowered this court to expand or update the list of recreational purposes. The legislature has declined to follow the “includes, but is not limited to” language of the 1965 model act and the even more expansive language of the 1979 proposed model act. While such an action might be supported by policy reasons, any such action must be taken by the legislature, not by us.
As a result, we conclude that the best interpretation of Iowa‘s recreational use statute is that the closed universe of activities specifically listed in section
C. Determination of Whether Sallee‘s Activities Constitute a Recreational Use. As noted above, the legislature has given us a closed definition of “recreational purpose.” We thus do not add, or subtract, from the legislative definition. See Gough v. County of Dutchess, 167 Misc.2d 568, 638 N.Y.S.2d 290, 291-92 (Sup.Ct.1996) (refusing to interpret “hiking” in the New York recreational use statute to include an infant‘s 500 to 600-foot walk through a field); see also Brooks v. Northwood Little League, Inc., 327 S.C. 400, 489 S.E.2d 647, 651 (S.C.Ct.App.1997) (noting that South Carolina‘s statute, by its express terms, “invites judicial expansion where the plain meaning of the statute would not be distorted“). We do not engage in innovations or improvements of the statute. Rather, we interpret it as we find it. See State v. Spencer, 737 N.W.2d 124, 129-30 (Iowa 2007). The district court determined Sallee‘s claims were barred by the recreational use statute because she chaperoned children who engaged in horseback riding and nature study. We disagree.
1. Horseback riding. Like many recreational use statutes, Iowa‘s definition of “recreational purpose” includes “horseback riding.”
2. Nature study. Like horseback riding, nature study is also included in the laundry list of recreational purposes under the recreational use statute.
3. Other summer sports. A number of recreational use statutes identify “sports,” “summer sports,” or “other summer sports” as defining terms of “recreational purpose.” Indeed, the 1965 model act included “winter sports” as one such defining term. Though the Stewarts did not so argue on appeal, there have been suggestions that “other summer ... sports,” as used in section
Though commonly a defining term of “recreational purpose,” many states do not provide an independent definition of what constitutes these sports. Alaska, however, is one state that does. Alaska‘s recreational use statute includes the phrase “sports or recreational activity” in defining its scope.
a commonly understood sporting activity, whether undertaken with or without permission, including baseball, softball, football, soccer, basketball, hockey, bungee jumping, parasailing, bicycling, hiking, swimming, skateboarding, horseback riding and other equine activity, dude ranching, mountain climbing, river floating, whitewater rafting, canoeing,
kayaking, hunting, fishing, backcountry trips, mushing, backcountry or helicopter-assisted skiing, alpine skiing, Nordic skiing, snowboarding, telemarking, snow sliding, snowmobiling, off-road and all-terrain vehicle use.
The Supreme Court of Montana was called upon to determine whether a football-type game called “500” was considered to be a recreational purpose under the Montana use statute. See Kapphan v. Vincent, No. DA 09-0182, 354 Mont. 392, 222 P.3d 645, 2009 WL 3764109, at *2 (Mont. Nov. 10, 2009). Because the Montana statute contains a nonexhaustive list of activities defining “recreational purpose” and because one of those defining terms is “winter sports,” the court concluded the game was a recreational purpose. Id. In addition to noting that outdoor hockey played on a frozen pond was a winter sport within the ambit of the statute, the court noted that “‘recreational purpose,’ as commonly understood and used in common parlance, would clearly include games such as soccer, Frisbee, basketball, football, ‘500,’ or a variety of other pursuits.” Id. Similarly, a South Carolina court determined T-ball was a “summer sport” within the meaning of the South Carolina statute. See Brooks, 489 S.E.2d at 651.
A Wisconsin appellate court concluded that playing catch with a football in a city park was “an outdoor sport or game” under its recreational use statute. See Taylor v. City of Appleton, 147 Wis.2d 644, 433 N.W.2d 293, 294 (Wis.Ct.App.1988). That court specifically noted that the Wisconsin legislature “directed a liberal interpretation of the statute,” which states that “recreational activity” means “any outdoor activity undertaken for the purpose of exercise, relaxation or pleasure.” Id. (citation and internal quotation marks omitted). The Wisconsin statute then lists a number of activities, but includes in that list ”any other outdoor sport, game, or educational activity.” Id. (emphasis added) (citation and internal quotation marks omitted). Thus, in addition to interpreting the legislative history to require a liberal construction of the statute, the statute itself also included catchall language.
In a related situation, the Supreme Court of Georgia found that persons enjoying the Atlanta Olympic Park at the 1996 Summer Olympics were engaged in a recreational purpose because the park was “created to celebrate the spirit of an historic athletic and cultural event and to provide a gathering place for visitors to relax and enjoy themselves.” Anderson, 537 S.E.2d at 348. However, the Georgia statute broadly defines “recreational purposes” using the “includes, but is not limited to” language of the 1965 model act. Id. at 347; see also
The common thread in these cases and definitions is that “sport,” as it is contemplated by recreational use statutes, is narrower than a definition meaning merely “a source of diversion” or “physical activity engaged in for pleasure.” See Merriam-Webster‘s Collegiate Dictionary 1134 (10th ed.2002). Even so, there are further reasons why it is not possible to give the definition of “other summer sports” an expansive reading outside the context of the other activities mentioned in the statute.
Second, if the term “other summer sports” simply meant pleasurable activity or a source of diversion, then the existing laundry list of activities in the statute would become meaningless. They would be swallowed up by the new expansive phrase. Further, the amendments subsequent to the 1971 addition of the phrase “other summer sports” would be entirely superfluous. See Quesenberry, 317 N.W.2d at 472 (noting that the addition of “snowmobiling, wood cutting and observation tower climbing” to the Wisconsin statute would have been superfluous if these activities would have otherwise already been covered under a broad interpretation of “recreational uses or purposes” (internal quotation marks omitted)). We cannot convert the phrase “other summer sports” into a statutory PAC-MAN that goes backward to gobble up preexisting statutory limitations and then goes forward to consume subsequent legislative language.
Third, an expansive reading of the term is inconsistent with the statutory history. As noted above, the Iowa legislature, unlike the majority of states, has refused to insert potentially expansive language in the definition of “recreational purpose.” The legislature altered the language of the 1965 model act and did not adopt the proposals in the 1979 proposed model act. Accordingly, Sallee did not engage in other summer sports as contemplated by the statute.
4. Summary. As a result of the above analysis, the activities which occurred in the hayloft do not constitute recreational uses under the Iowa statute. Further, Sallee‘s injuries cannot be characterized as resulting from horseback riding, nature study, other summer sports, or any other specifically enumerated recreational purpose. As a result, the district court erred in granting summary judgment for the defendants based on the limited immunity provided in Iowa‘s recreational use statute.
VIII. Willful or Malicious Conduct.
Section
We considered the question of what amounted to willful failure to guard against a dangerous condition under the recreational use statute in a per curiam decision in Bird v. Economy Brick Homes, Inc., 498 N.W.2d 408 (Iowa 1993). In that case, the defendant erected a steel cable across an access road to prevent vehicles from entering the property. Bird, 498 N.W.2d at 408. While we recognized a split in authority on the issue, we held that the placement of the steel cable, without more, did not amount to a willful failure to guard against a dangerous condition. Id.
In any event, Bird is a dangerous condition case. There is no suggestion in Bird that the defendant was present when the plaintiff drove his motorcycle down the access road and failed to warn of the cable across the road. The case might well have had a different outcome if the defendant had an opportunity to warn Bird of the dangers posed by a cable across the road, but failed to do so.
We now turn to other authorities. One leading authority states that willful conduct may be found under a recreational use statute only where “a known or obvious risk so great as to make it highly probable that harm will result.” 3 Louis A. Lehr, Jr., Premises Liability 3d, § 54.41 (2012). In Mandel v. United States, 719 F.2d 963, 967-68 (8th Cir.1983). In construing the related phrase “willful and wanton,” we have stated that the actor must show “disregard of a known or obvious risk that was so great as to make it highly probable that harm would follow.” Brokaw v. Winfield-Mt. Union Cmty. Sch. Dist., 788 N.W.2d 386, 396 (Iowa 2010) (quoting McClure v. Walgreen Co., 613 N.W.2d 225, 230 (Iowa 2000)).
We conclude that the plaintiff has not presented sufficient evidence to allow a reasonable fact finder to find that defendants acted willfully. The defendants knew that Sallee was a very large woman. There is insufficient evidence in the record, however, to support a finding that Sallee would likely sit or stand on the hay bales covering the hole in the loft or that it was highly probable that the hay bales would almost assuredly collapse as a consequence, thereby causing serious injury.
IX. Conclusion.
We hold the limited immunity provided by the recreational use statute does not apply in this case. We further conclude, however, that the plaintiff has not raised a triable issue of willful or malicious conduct. As a result, the decision of the district court is reversed and the case is remanded for further proceedings.
DECISION OF COURT OF APPEALS VACATED; DISTRICT COURT JUDGMENT REVERSED, AND CASE REMANDED.
All justices concur except WIGGINS, J., who concurs specially and WATERMAN and MANSFIELD, JJ., who dissent.
WIGGINS, Justice (concurring specially).
I concur with the majority opinion. I write separately, however, because, under the facts of this case, I would find the plaintiffs were entitled to a trial in the event the immunity provided by the recreational use statute applied to the activity of children playing in a barn‘s hayloft. For the reasons expressed below, I believe the Sallees’ claim of negligent supervision is outside the scope of the statute‘s immunity and thus, is an independent basis for seeking recovery from the Stewarts.
I. Relationship Between Negligent Supervision and Premises Liability Claims.
We have one case that considers the relationship between negligence claims and the immunity accorded in Iowa‘s recreational use statute. In Scott v. Wright, the plaintiff was injured when she fell off and
There, we declined to disturb the jury verdict. Id. at 42. A review of the statute‘s legislative history revealed that nothing in the language of the recreational use statute “suggests a legislative intent to immunize all negligent acts of landowners, their agents, or employees.” Id. We emphasized the statute was enacted to serve “‘a growing need for additional recreation areas for use by our citizenry.‘” Id. (quoting H.F. 151 62d G.A., Reg. Sess., explanation (Iowa 1967)). Accordingly, our holding was also based upon the following practicality: “The public‘s incentive to enter and enjoy private agricultural land would be greatly diminished if users were subject, without recourse, to human error as well as natural hazards.” Id.
In focusing the scope of the statute so narrowly, we emphasized that the language of the recreational use statute “is couched in terms of premises liability.” Id. (emphasis added). In short, the test announced in Scott is whether the claim is based upon “human error” or “natural hazards.” Id. If the claim involves natural hazards, the immunity in the recreational use statute applies and bars the plaintiff‘s claim, which subsequently extinguishes any premises liability claims. However, if the claim arises from human error, the recreational use statute provides no immunity.
In addition to Scott, we have had at least one other occasion to consider the interplay between claims involving negligent supervision and claims for premises liability. In Sweeney v. City of Bettendorf, we considered whether the City was liable for negligently supervising a child who was injured by a flying bat at a city-sponsored trip to a baseball game. 762 N.W.2d 873, 875-76 (Iowa 2009). We recognized that under the applicable precedent, the plaintiffs had no premises liability claim against the baseball stadium‘s owner or operator. Sweeney, 762 N.W.2d at 882-83. However, the plaintiffs still had a negligence claim against the City. Id. at 883. To reach this conclusion, we stated that “a negligent supervision case is fundamentally different than a case involving premises liability.” Id. at 882. We emphasized the claim against the City “does not relate to the instrumentality of the injury, but instead focuses on the proper care and supervision of children in an admittedly risky environment.” Id.
In Sweeney, we approvingly cited the case, Cook v. Smith, 33 S.W.3d 548 (Mo.Ct.App.2000). See Sweeney, 762 N.W.2d at 883. In Cook, the plaintiff was invited to the defendants’ farm for a party. 33 S.W.3d at 551. While there, the plaintiff rode an ATV and was subsequently injured. Id. The plaintiff brought a two-count action against the defendant landowners, alleging premises liability and negligent supervision. Id. The court dismissed the premises liability claim, but allowed the negligence claim to go forward, thereby demonstrating the different theoretical bases for premises liability and negligence. Id. at 552-55.
II. Viability of Plaintiffs’ Negligence Claim.
The question then is whether the defendants were entitled, as a matter of law, to summary judgment on the plaintiffs’ negli-
In order to support a claim of negligence, there must be some kind of duty owed to the plaintiff. See, e.g., Doe v. Cent. Iowa Health Sys., 766 N.W.2d 787, 792 (Iowa 2009) (recognizing a duty may arise pursuant to a statutory enactment). The court of appeals found the Stewarts owed a duty to Sallee, based upon the Stewarts’ affirmative action of providing a guided barn tour.
The analytical approach used by the court of appeals in reaching this conclusion is sound because the Stewarts wear two hats in this case. One hat is that of landowners. The other hat is that of tour guides. Although the Stewarts have immunity as landowners under the recreational use statute if the activity resulting in Sallee‘s injury had a recreational purpose, the statute has no impact whatsoever on the distinctly different question of whether the Stewarts owed a duty of care when they guided the barn tour.
This is true because the immunity provided by
Here, however, the Sallees have a negligence claim that is independent of premises liability. The Sallees have stated a cause of action based upon the acts or omissions of the Stewarts as supervisors of the barn tour. This claim differs from premises liability, which is passive because a landowner who does nothing can be liable based on a failure to act. Here, the Stewarts covered the hay drop and directed Sallee to the hayloft.
The Sallees’ negligence claim is supported by the Restatement (Second) of Torts section 324A (1965), which provides that one may be liable for harm to another if he or she gratuitously undertakes “to render services to another which he [or she] should recognize as necessary for the protection of a third person ... if his [or her] failure to exercise reasonable care increases the risk of such harm.” To give the claim a shorthand name, it is a negligent supervision claim. We have imposed liability for such claims under the rule contained in section 324A. See, e.g., Craven v. Oggero, 213 N.W.2d 678, 682 (Iowa 1973) (holding a supervisor who assumes the obligation to provide a safe place for an employee can be held liable under section 324A); Fabricius v. Montgomery Elevator Co., 254 Iowa 1319, 1325-28, 121 N.W.2d 361, 364-66 (1963) (imposing liability for negligent inspection gratuitously undertaken by an insurance company).
The distinction I draw between premises liability and negligent supervision claims is generally recognized in the case law. See Raburn v. Wal-Mart Stores, Inc., 776 So.2d 137, 139-41 (Ala.Civ.App.1999) (noting that while an owner may not have an initial duty to prevent injuries to business invitees as a result of criminal acts, liability may result from negligent performance of a voluntary undertaking to apprehend criminals); Redinger v. Living, Inc., 689 S.W.2d 415, 417 (Tex.1985) (recognizing a duty to keep a premises safe can subject a general contractor to liability for negligence in cases “arising from a premises defect” or “those arising from an activity or instrumentality“); see also Sidwell v. Griggsville Cmty. Unit Sch. Dist. No. 4, 146 Ill.2d 467, 167 Ill.Dec. 1055, 588 N.E.2d 1185, 1188-89 (1992) (deciding a case mirroring the facts here, where the court found a limited immunity statute barred claims of negligent supervision
Perhaps more importantly, the distinction between negligent supervision and premises liability is widely recognized across the jurisprudential landscape of recreational use statutes. For instance, in LePoidevin v. Wilson, the Wisconsin Supreme Court distinguished a premises liability claim, which was subject to an immunity defense under Wisconsin‘s recreational use statute, from a negligence claim arising from the landowner‘s son taunting the plaintiff into diving headfirst into a three-foot-deep pond. 111 Wis.2d 116, 330 N.W.2d 555, 559-62 (1983). Similarly, in Klein v. United States, the California Supreme Court found that a recreational use statute did not extinguish claims arising from the negligent acts of owners on the premises. 50 Cal.4th 68, 112 Cal.Rptr.3d 722, 235 P.3d 42, 47-53 (2010). In Dickinson v. Clark, the court noted that a recreational use statute did not apply to a claim related to the landowner‘s negligent supervision of a minor operating a log splitter. 767 A.2d 303, 305-06 (Me.2001). Finally, in Sena v. Town of Greenfield, the court found that a city could be held liable for sledding injuries, where the city actually supervised the activity, notwithstanding potential coverage by a recreational use statute. 91 N.Y.2d 611, 673 N.Y.S.2d 984, 696 N.E.2d 996, 999-1000 (1998). Thus, even though a recreational use statute may bar a plaintiff‘s claim based upon premises liability, the plaintiff may still have a viable claim against the defendant under the theory of negligent supervision.
To determine whether a plaintiff has a viable claim of negligent supervision, the court must look to the level of control the defendant exercised over the plaintiff‘s activity. In Cohen v. Heritage Motor Tours, Inc., the court found a tour guide assumed a duty by instructing participants to cross a stream in a particular manner. 205 A.D.2d 105, 618 N.Y.S.2d 387, 389 (1994). This voluntarily assumed duty, of course, was not related to any potential premises liability claim that the plaintiff might have asserted against the landowner. Similarly, in Gordon v. Muchnick, the court found a jury question was raised as to whether the defendant assumed an undertaking sufficient to give rise to a duty of care, where the defendant guided the plaintiff across a street. 180 A.D.2d 715, 579 N.Y.S.2d 745, 745 (1992).
In short, the court of appeals got it right on this issue. The Sallees have stated a claim based upon negligent supervision that is independent of their cause of action for premises liability. As a result, even if the immunity in the recreational use statute covered the activity of playing in a hayloft and precluded recovery, the Stewarts’ affirmative conduct raises another claim outside the scope of the statute and presents a triable issue not subject to summary judgment.
MANSFIELD, Justice (dissenting).
Sometimes two acts of generosity collide and lead to an unfortunate result. That is what happened in this case. Matthew and Diana Stewart invited a kindergarten class to visit their dairy farm on a field trip. Kimberly Sallee volunteered her time to serve as a chaperone for the visit. While Sallee was accompanying the children during their playtime in a hayloft, she fell through a chute that was covered by hay bales and broke her wrist and ankle. Sallee sued the Stewarts for her injuries. The Stewarts answered and asserted Iowa‘s recreational use immunity,
Sallee argued for several reasons that the immunity did not apply. The district court disagreed and granted summary judgment to the Stewarts. I would affirm the district court for the reasons set forth herein.
While I believe the majority opinion displays the usual scholarship characteristic of its author, it suffers from conceptual flaws. In particular, it overemphasizes what other states have done and underemphasizes what Iowa has done. As my colleagues acknowledge, when we get to the critical provisions involved in this case, Iowa‘s recreational use law is largely sui generis. Therefore, I believe it is important to focus on the evolution of our law. Iowa‘s recreational use statute, from the very outset, was designed to encourage farmers to offer free recreational use of their lands and appurtenant buildings. It turns this law upside down to hold that jumping in a hayloft during a gratuitous field trip was not such a use.
I. Iowa‘s Recreational Use Law.
As first enacted in 1967, Iowa‘s statute was limited to private agricultural lands and “buildings, structures and machinery or equipment appurtenant thereto.” 1967 Iowa Acts ch. 149, § 2. Thus, the original definition of “land” covered by the act read as follows:
“Land” means land used for agricultural purposes, including marshlands, timber, grasslands and the privately owned roads, water, water courses, private ways and buildings, structures and machinery or equipment appurtenant thereto.
that were “appurtenant thereto,” such as a barn.
Meanwhile, the legislature‘s original, unique-to-Iowa definition of “recreational purpose” read as follows:
“Recreational purpose” means the following or any combination thereof: hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports, and viewing or enjoying historical, archeological, scenic, or scientific sites while going to and from or actually engaged therein.
In 1971, the legislature added “horseback riding” to the list of approved recreational purposes. 1971 Iowa Acts ch. 129, § 1. Later in the same session, the legislature expanded the definition of “recreational purpose” to include “motorcycling” and “snowmobiling,” while it substituted the phrase “other summer and winter sports” for “winter sports.”
In 1978, the legislature expanded the definition of “land” to include “abandoned or inactive surface mines” and “caves,” in addition to “land used for agricultural purposes.” 1978 Iowa Acts ch. 1066, § 1. In 1988, the legislature added “trapping” to the list of covered “recreational purposes.” 1988 Iowa Acts ch. 1216, § 46.
In 2006, the general assembly inserted the phrase “or urban deer control” where it appears in the current version of the statute. See 2006 Iowa Acts ch. 1121, §§ 1, 4, 5. Simultaneously, the legislature greatly expanded the previous definition of
We have previously referred to chapter 461C as “a blanket abrogation of duty to all recreational users (except as provided in section
II. Does the Immunity Apply to the Stewarts’ Barn?
The first question to be answered is whether the Stewarts’ dairy barn is the kind of property to which the recreational use immunity can apply. I think the answer is clear from the statute. The statutory immunity extends to “buildings” and “structures,” see
It is true that courts in other jurisdictions have reached differing conclusions as to the kinds of properties that are covered by their respective recreational use laws.
As one court has said, “[W]e observe a widespread conflict among the jurisdictions as to exactly what type of land is intended to be covered by the liability limitation.” Redinger v. Clapper‘s Tree Serv. Inc., 419 Pa.Super. 487, 615 A.2d 743, 745 (1992). Thus, the Pennsylvania Supreme Court has held that an indoor swimming pool is not covered. Rivera v. Phila. Theological Seminary, 510 Pa. 1, 507 A.2d 1, 8 (1986) (stating that the legislature intended to limit buildings, structures, machinery, or equipment to “ancillary structures attached to open space lands made available for recreation“). The Louisiana Supreme Court concluded that an outdoor swimming pool was not covered. Keelen v. State, 463 So.2d 1287, 1290 (La.1985) (stating that “when the instrumentality ... is of the type usually found in someone‘s backyard, then the statutes afford no protection“). On the other hand, the Massachusetts Supreme Judicial Court has found that the immunity applies to an indoor gymnasium. Seich v. Town of Canton, 426 Mass. 84, 686 N.E.2d 981, 983 n. 5 (1997). And the Ninth Circuit has held that Hawaii‘s act covers urban swimming pools. See Palmer v. United States, 945 F.2d 1134, 1135-36 (9th Cir.1991). But see Cassio v. Creighton Univ., 233 Neb. 160, 446 N.W.2d 704, 711 (1989) (holding that Nebraska‘s act does not apply to independent indoor recreational facilities, including swimming pools). Given this divergence of views, I think it is most helpful to look at what we did here in Iowa.
When our general assembly enacted Iowa‘s recreational use immunity law in 1967, it modified the proposed model act‘s definition of “land.” The model act stated:
“Land” means land, roads, water, water-courses, private ways and buildings, structures, and machinery or equipment when attached to the realty.
Council of State Governments, Public Recreation on Private Lands: Limitations on Liability, 24 Suggested State Legislation 150, 151 (1965) [hereinafter Council of State Governments]. However, our legislature chose the following language:
“Land” means land used for agricultural purposes, including marshlands, timber, grasslands and the privately owned roads, water, water courses, private ways and buildings, structures and machinery or equipment appurtenant thereto.
1967 Iowa Acts ch. 149, § 2.
Thus, from the outset, our legislature made a decision that Iowa would go its own way and have an immunity directed to agricultural properties. The general assembly stated that the immunity would cover agricultural land “and buildings, structures and machinery or equipment appurtenant thereto.”
My colleagues raise the concern that Iowa‘s recreational use immunity could possibly lead to strange results, such as coverage for a backyard barbecue. But this concern, to the extent it exists, follows largely from the legislature‘s 2006 expan-
sion of the definition of “land” as part of its urban deer control amendment. This is not a reason to deny the Stewarts’ immunity for activities in an agricultural building that always has been covered by the statute.11
Alternatively, my colleagues suggest that because the Stewarts only allowed a few, specified groups on their farm, it was not open to the public and the recreational use immunity does not apply. This too is a misleading of the statute, which contains no such qualification. Section
That statute [what is now section
461C.3 ] simply refers to recreational use by “others.” We believe the word “others” embraces all persons other than the landowner who makes such use of the property.
Id. at 471. Although my colleagues call into question the continued vitality of Peterson, there is no justification for doing so. This precedent is twenty-two years old, and the legislature in 2006 made a substantial modification of the statute without disturbing it. In any event, the case was correctly decided.
As the Missouri Supreme Court has said, in a case holding that a farmer who
The use of the term “public” merely reflects the fact that the statute is designed to encourage landowners with property suitable for certain recreational activities to allow members of the public to participate in those activities. Nowhere does the [Missouri statutory recreational use immunity] require that land be opened to the entire general public, and this Court will not add language to a statute that is clear and unambiguous.
State ex rel. Young v. Wood, 254 S.W.3d 871, 873 (Mo.2008); see also Howard v. United States, 181 F.3d 1064, 1071 (9th Cir.1999) (“The [Hawaii recreational use immunity statute] does not contain a requirement that a landowner allow each and every individual of the general public access and use of the land ...“); Holden v. Schwer, 242 Neb. 389, 495 N.W.2d 269, 274 (1993) (“[I]n order to facilitate the purpose of [the Nebraska recreational use immunity statute] a landowner need allow only some members of the public, on a casual basis, to enter and use his land for recreational purposes to enjoy the protection of the act.“).12
I recognize that some other jurisdictions have ruled otherwise. See Hall v. Henn, 208 Ill.2d 325, 280 Ill.Dec. 546, 802 N.E.2d 797, 799-800 (2003) (holding that Illinois‘s recreational use immunity statute does not apply to “landowners who restrict the use of their property to invited guests only“); Loyer v. Buchholz, 38 Ohio St.3d 65, 526 N.E.2d 300, 302 (1988) (holding that Ohio‘s statute “does not extend to private owners
of residential swimming pools whose social guest is injured while swimming, where the premises in question are not held open for gratuitous recreational use by the general public“); Perrine v. Kennecott Mining Corp., 911 P.2d 1290, 1293 (Utah 1996) (holding that “to qualify for immunity under [Utah‘s statute], landowners must make their land available to all members of the general public“). But these courts have done so on the basis that this limitation is necessary because those state statutes would otherwise provide immunity for homeowners from negligence claims brought by social guests who enter for recreational purposes. See Hall, 802 N.E.2d at 800 (stating that “defendant‘s reading of the Act, while textually plausible, renders an absurd and unjust result“); Loyer, 526 N.E.2d at 302; Perrine, 911 P.2d at 1293. I do not believe we are at liberty to rewrite the statute, at least where the result in this case is not absurd or unjust. Farmers who allow school groups, but not every member of the general public, to enjoy their property for recreational purposes, are still entitled to the benefit of the statute if the other requirements of the immunity have been met.
III. Was Sallee Engaged in a Recreational Purpose?
My colleagues conclude that the immunity should not apply because the excursion to the hayloft was not a recreational purpose. I disagree.
The Stewarts contended that the Sacred Heart kindergarten field trip potentially involved three activities specifically identified in Iowa‘s statute: “horseback riding,
The term “sport” has a number of definitions. For example, Merriam-Webster‘s Collegiate Dictionary defines sport as “a source of diversion: RECREATION,” and “physical activity engaged in for pleasure,” among other things. See Merriam-Webster‘s Collegiate Dictionary 1134 (10th ed.2002).
In City of Marion v. Iowa Department of Revenue & Finance, we held that the department could tax municipal swimming pool admission fees on the theory that these were “fees paid to cities and counties for the privilege of participating in any athletic sports.” 643 N.W.2d 205, 206-08 (Iowa 2002). There, we upheld the department‘s interpretation of “athletic sports” as including recreational swimming. City of Marion, 643 N.W.2d at 207. The agency had specifically defined a “sport” as “any activity or experience which involves some movement of the human body and gives enjoyment or recreation.” Id.
On the other hand, a federal district court recently observed that “it is not clear that snorkeling falls within the plain meaning of ‘sports,‘” relying on other dictionary definitions that require a “sport” to be governed by “form,” “rules,” or “customs.” Hawaiian Isle Adventures, Inc. v. N. Am. Capacity Ins. Co., 623 F.Supp.2d 1189, 1197-98 (D.Haw.2009).
As I have noted, the “other summer and winter sports” language was part of a 1971 amendment where the legislature also add-
ed “motorcycling” and “snowmobiling” to the list of covered activities. 1971 Iowa Acts ch. 130, § 1. I think that by doing so, the legislature opted for a broader definition of “sports“—similar to the one we upheld in City of Marion—rather than a definition limited to contests governed by forms, rules, or customs. By using the word “other,” the legislature implied that items previously listed in the definition, and particularly motorcycling and snowmobiling which were being added, were also sports. See, e.g., State v. Ashland, 259 Iowa 728, 730, 145 N.W.2d 910, 911 (1966) (stating that “[t]he naming of pistols and revolvers followed by the words ‘other dangerous weapon’ clearly designates the listed items as dangerous weapons by statute“). Those activities would be considered sports only under a broad definition that equated a sport with a form of play or diversion. Snowmobiling is a sport in the sense that it is a form of physical activity engaged in for pleasure, not in the sense that it is a contest governed by forms, rules, or customs, like baseball or ice hockey.
This interpretation would not have led to awkward results at the time, because in 1971 only agricultural lands and appurtenant buildings, structures, machinery, and equipment were covered. In short, I conclude the legislature intended in 1971 to introduce some flexibility into the definition of “recreational purpose” that other states (which used the model act language) already had. In short, while our general assembly had elected not to use the model act‘s broader phrasing—“includes, but is not limited to“—in 1967, it nonetheless opened up the definition of “recreational purpose” in 1971 by making clear that other summer and winter sports would be covered.13
Alternatively, my colleagues suggest that even if the children were embarked on a recreational purpose on May 18, 2010, Sallee was not. In other words, chaperoning a recreational activity is not itself a recreational purpose. However, it is sufficient in my view that Sallee was present to help with the class‘s recreational activity. For example, the Hawaii Supreme Court has found that the recreational use immunity applied to the claim of a paid scuba instructor who was injured while leading clients across hotel property after a dive. Thompson v. Kyo-Ya Co., 112 Hawai‘i 472, 146 P.3d 1049, 1057-58 (2006). As the court put it, “[W]here the plaintiff‘s pres-
ence on the land is closely associated with the presence of individuals whose purpose on the land is purely recreational, the recreational purpose attaches to the plaintiff.” Id. at 1058. Quoting the trial court in that case, the court concluded that the plaintiff was “engaged in ‘an activity in pursuit of the use of the property for recreational purposes.‘” Id.; see also Palmer, 945 F.2d at 1137-38 (rejecting a grandparent‘s argument that he was not engaged in “recreation” because he was supervising his grandchildren who were swimming); Ornelas v. Randolph, 4 Cal.4th 1095, 17 Cal.Rptr.2d 594, 847 P.2d 560, 564 (1993) (stating that “whether plaintiff entered the property to play on the equipment, or merely accompanied the other children at play, is immaterial“); Hafford v. Great N. Nekoosa Corp., 687 A.2d 967, 968-69 (Me.1996) (holding that Maine‘s recreational use statute applied to an outfitter who was injured while supplying canoeing and camping enthusiasts); Fetherolf v. State, 7 Ohio App.3d 110, 454 N.E.2d 564, 565-66 (1982) (finding as a matter of law that the plaintiff who was injured while walking toward the beach with his three-year-old daughter was a recreational user, even though his shoulder injury prevented him from doing anything other than sitting and watching while his family swam). But see Rintelman v. Boys & Girls Clubs of Greater Milwaukee, Inc., 288 Wis.2d 394, 707 N.W.2d 897, 904-06
Iowa‘s statute applies when there is an “entry or use by others for recreational purposes.”
IV. Does the Record Raise an Issue of a Willful or Malicious Failure to Guard or Warn Against a Dangerous Condition?
Section
This court has addressed this statutory provision once before. See Bird v. Economy Brick Homes, Inc., 498 N.W.2d 408, 409 (Iowa 1993). In Bird, a motorcyclist struck a steel cable that had been placed across an access road. Id. at 408. “At the time of the accident, there were no markings on the cable to keep it from blending
with its surroundings.” Id. After discussing various other cases that had interpreted similar language, we concluded that the mere placement of an unmarked cable across an access road “did not create an issue of material fact as to whether Economy acted willfully or maliciously.” Id. at 410.
The Stewarts had been allowing this kindergarten class to come for the past twenty-five years. During that entire time, the chute had been present in the hayloft. There is no evidence there had ever been an accident in the hayloft. “It‘s never been a concern,” Matthew Stewart testified. The Stewarts insisted on being personally present for any visits by any groups. Matthew Stewart explained both the reason why there was a chute in the loft (to allow hay to be thrown down occasionally), and the reason why the chute was covered (to keep the animals warmer).
This case does not fit within the circumstances where a willful or malicious failure to warn or guard has been found. In Mandel v. United States, cited by Sallee, the plaintiff was paralyzed from diving onto a submerged rock. 719 F.2d 963, 964-65 (8th Cir.1983). Although the park rangers did not know of this specific rock, they knew of submerged rocks in the vicinity, knew that people swam there, and had brochures which warned people to be careful about diving; yet they failed to warn the plaintiff or post signs and instead told the plaintiff “that is where everybody goes and that is where we recommend for you to go.” Mandel, 719 F.2d at 967. “It could reasonably be inferred and found that such conduct is the commission of an act with knowledge or appreciation that danger is likely to result therefrom.” Id.
Additionally, the phrase “willful or malicious” as used in section
One who undertakes, gratuitously or for consideration, to render services to another which he should recognize as necessary for the protection of the other‘s person or things, is subject to liability to the other for physical harm resulting from his failure to exercise reasonable care to perform his undertaking, if
(a) his failure to exercise such care increases the risk of such harm, or
(b) the harm is suffered because of the other‘s reliance upon the undertaking.
V. Is There a “Tour Guide” Exception?
Finally, Sallee argues that by guiding the group around the farm, including into the hayloft, the Stewarts performed a voluntary undertaking within the meaning of Restatement (Second) of Torts section 323 that is not covered by the recreational use immunity.17 The district court rejected this argument. In her opening brief on appeal, Sallee renewed her section 323 argument. In her reply brief, she recast this argument into one based on section 7 of the Restatement (Third) of Torts. In that form, the court of appeals accepted it and on that basis reversed the district court‘s grant of summary judgment. Regardless of the Restatement box into which this argument falls, I do not believe there is a “tour guide” exception to the recreational use immunity in this case.18
In Scott v. Wright, we found that the recreational use immunity did not bar a claim against the defendants based on the negligent driving of a tractor on their property. 486 N.W.2d 40, 42-43 (Iowa 1992). In that case, the plaintiff was seriously injured when she fell off a hay wag-
Scott‘s suit against Wrights rests—not on duties addressed by section 111C.3 [now section
461C.3 ]—but on vicarious liability for alleged negligence in the operation of a motor vehicle. We are convinced, as was the district court, that this intervening act of negligence takes the case outside the purview of chapter 111C.
By its terms, section 111C.3 immunizes landowners from only two specific duties of care toward persons using agricultural property for recreational purposes: to keep the premises safe and to warn of dangerous conditions. Nothing in the language of chapter 111C suggests a legislative intent to immunize all negligent acts of landowners, their agents, or employees. Nor do we believe such broad application of the statute would serve the public purpose envisioned by the legislature. Though focused on reducing landowner liability, the statute was also enacted to serve “a growing need for additional recreation areas for use by our citizenry.” Explanation to H.F. 151 at 3, 62nd G.A. (Iowa 1967). The public‘s incentive to enter and enjoy private agricultural land would be greatly diminished if users were subject, without recourse, to human error as well as natural hazards.
Because the language of chapter 111C is couched in terms of premises liability, and the legislative history of the statute evinces no other motive for its passage,
we are convinced the court correctly refused to apply it in this case. Id. at 42.
Sallee contends that Scott stands for the proposition that she can sue over any “affirmative act” of negligence by the landowner. She also urges that Scott allows a party to sue when the claim is for “human error” as opposed to “natural hazards.” See id. I do not read Scott so broadly.19 Scott emphasized that the claim was not for premises liability, and therefore, it was not foreclosed by the statute. Id. Scott‘s focus on the statutory language was appropriate. The statute makes clear that except as provided in section
Sallee‘s claim, however, has to do with the condition of the premises. She alleges either that (1) the hayloft was not safe, (2) Stewart should have warned her about it, or (3) Stewart should not have encouraged the group to go there. See Reply Brief for Appellant at 16 (“This required the Stew-
In Klepper v. City of Milford, the plaintiff tried unsuccessfully to rely on Restatement (Second) of Torts section 323 as an exception to the recreational use immunity. 825 F.2d 1440, 1448-50 (10th Cir.1987).20 That case involved a serviceman on weekend leave who was paralyzed after diving headfirst from a moored boat into murky but shallow water. Klepper, 825 F.2d at 1441-42. There was a sign warning against swimming but whether it was actually in place or had been dislodged was subject to dispute. Id. at 1442. Invoking section 323, the plaintiff argued the defendants had assumed a duty when they “undertook to erect a warning sign near the boat dock” and “undertook to make quarterly inspections.” Id. at 1448-49. The
United States Court of Appeals for the Tenth Circuit rejected the argument that such an “assumed duty” negated the statutory recreational use immunity, explaining as follows:
We agree with the district court that there is no compulsion under Kansas law to extend sections 323 and 324A of the Restatement to the RUS [statutory recreational use immunity] context. The RUS itself is a statutory modification of the common law of torts and provides for no liability for simple negligence. Instead, it provides for liability only where conduct is willful or malicious or where consideration is given in return for use of the recreational facilities. If the Kansas legislature had wanted to provide for additional exceptions, such as liability for negligent inspections, it could have so stated. To rule otherwise would have the effect of defeating the purpose of the RUS. As the United States points out, “If a negligent, gratuitous inspection results in liability, the requirement in the RUS for the higher standard for liability, i.e., willfulness or maliciousness, has been eliminated.”
Id. at 1450. The Tenth Circuit‘s reading of the statute is logical, and the same logic should apply here. Our general assembly, like the Kansas legislature, provided that (subject to certain exceptions) landowners would have no duty “to keep the premises safe for entry or use by others for recreational purposes,” or “to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.”
Application of the HRUS [Hawaii recreational use immunity statute] precludes other theories of liability based upon mere negligence. Nothing in the language of the statute or its legislative history indicates that Hawaii intended the HRUS to apply only when the landowner fails to take any precautionary measures to ensure the safety of recreational users.
Id.; see also Ervin v. City of Kenosha, 159 Wis.2d 464, 464 N.W.2d 654, 657-660 (1991) (rejecting the plaintiffs’ claim that the negligence of lifeguards took the case outside the recreational use immunity based on a theory of “active negligence” or “gratuitous acts” and noting that if liability were imposed based on such a theory, “these facilities may not be provided“).21
Sallee also argues that she has a claim against the Stewarts under Restatement (Second) of Torts section 310 (1965) (“Conscious Misrepresentation Involving Risk of Physical Harm“). That section provides:
An actor who makes a misrepresentation is subject to liability to another for physical harm which results from an act done by the other or a third person in reliance upon the truth of the representation, if the actor
(a) intends his statement to induce or should realize that it is likely to induce action by the other, or a third person, which involves an unreasonable risk of physical harm to the other, and
(b) knows
(i) that the statement is false, or
(ii) that he has not the knowledge which he professes.
I agree with the Stewarts that Sallee has not shown an affirmative misrepresentation. Accordingly, I would not reach the question whether chapter 461C would bar such a claim in any event.
VI. Conclusion.
To sum up: Iowa‘s recreational use law has always covered agricultural lands and appurtenant buildings, such as a barn. Jumping in hay is a sport in the same sense that other activities listed in section
Notwithstanding its extensive citations to historical materials, law review articles, and other states’ laws, I think the majority opinion misses the essential point: Our recreational use law protects farmers who want to open up their farm properties so others can play there for free. At least it did so until today.
I respectfully dissent and would affirm the judgment of the district court in its entirety.
WATERMAN, J., joins this dissent.