ENGROSSED

COMMITTEE SUBSTITUTE

FOR

H. B. 2178
(By Delegate D. Miller)


(Originating in the House Committee on the Judiciary)


[March 29, 1993]


A BILL to amend and reenact sections one, three, five and six, article twenty-five, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto a new section, designated section seven, all relating to permitting landowners to charge up to twenty-five dollars for the use of land without incurring liability for other than willful or malicious failure to guard or warn against a dangerous or hazardous condition, use, structure or activity; defining terms; limiting the liability of landowners who allow their property to be used for military training purposes; and requiring insurance companies providing liability coverage for land owners who permit others to use their lands for recreational or military purposes to waive or agree not to assert immunity as a defense to a claim made which is within the coverage of such policy made against the land owner and which does not exceed the policy limits unless the land owner waives in writing
the requirement that such insurer need not so waive or agree.
 Be it enacted by the Legislature of West Virginia:
That sections one, three, five and six, article twenty-five, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, all to read as follows:
ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.

§19-25-1. Purpose.

The purpose of this article is to encourage owners of land to make available to the public land and water areas for military training or recreational or wildlife propagation purposes by limiting their liability toward persons entering thereon and toward persons who may be injured or otherwise damaged by the acts or omissions of persons entering thereon.
§19-25-3. Limiting duty of landowner who leases land to state, counties, municipalities or agencies.

Unless otherwise agreed in writing, an owner of land leased to the state or any agency thereof, or any county or municipality or agency thereof, for military training or recreational or wildlife propagation purposes owes no duty of care to keep that land safe for entry or use by others or to give warning to persons entering or going upon such the land of any dangerous or hazardous conditions, uses, structures or activities thereon. An owner who leases land to the state or any agency thereof, or any county or municipality or agency thereof, for military training or recreational or wildlife propagation purposes shall not by giving such a lease (a) extend any assurance to any personusing the land that the premises are safe for any purpose, or (b) confer upon such those persons the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of a person who enters upon the leased land. The provisions of this section apply whether the person entering upon the leased land is an invitee, licensee, trespasser or otherwise.
§19-25-5. Definitions.
For purposes of this article: (a) The term "land" shall include, but not be limited to, roads, water, watercourses, private ways and buildings, structures and machinery or equipment thereon when attached to the realty; (b) the term "owner" shall include, but not be limited to, tenant, lessee, occupant or person in control of the premises; (c) the term "recreational purposes" shall include, but not be limited to, any one or any combination of the following: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, winter sports and visiting, viewing or enjoying historical, archaeological, scenic or scientific sites, or otherwise using land for purposes of the user; (d) the term "wildlife propagation purposes" shall apply to and include all ponds, sediment control structures, permanent water impoundments, or any other similar or like structure created or constructed as a result of or in connection with surface mining activities, as governed by article six, chapter twenty of this code, or from the use of surface in the conduct of underground coal mining as governed by articles one and two, chapter twenty- two of thiscode, and regulations promulgated thereunder, which ponds, structures or impoundments are hereafter designated and certified in writing by the director of the department of natural resources and the owner to be necessary and vital to the growth and propagation of wildlife, animals, birds and fish or other forms of aquatic life, and finds and determines that such premises has the potential of being actually used by such wildlife for such purposes and that such premises are no longer used or necessary for mining reclamation purposes. Such certification shall be in form satisfactory to the director and shall provide that such designated ponds, structures or impoundments shall not be removed without the joint consent of the director and the owner; and (e) the term "charge" shall mean the amount of money asked in return for an invitation to enter or go upon the land.
Unless the context used clearly requires a different meaning, as used in this article:
(1) "Charge" means:
(A) For purposes of limiting liability for recreational or wildlife propogation purposes set forth in section two of this article, the amount of money asked in return for an invitation to enter or go upon the land including a one time fee for a particular event, amusement, occurrence, adventure, incident, experience or occasion but not including an amount of money not to exceed fifty dollars a year for an individual for the annual use of land;
(B) For purposes of limiting liability for military training set forth in section six of this article, the amount of money asked in return for an invitation to enter or go upon the land;
(2) "Land" includes, but shall not be limited to, roads, water, watercourses, private ways and buildings, structures and machinery or equipment thereon when attached to the realty;
(3) "Owner" includes, but shall not be limited to, tenant, lessee, occupant or person in control of the premises;
(4) "Recreational purposes" includes, but shall not be limited to, any one or any combination of the following noncommercial recreational purposes: Hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycle or all-terrain vehicle riding, nature study, water skiing, winter sports and visiting, viewing or enjoying historical, archaeological, scenic or scientific sites, or otherwise using land for purposes of the user;
(5) "Wildlife propagation purposes" applies to and includes all ponds, sediment control structures, permanent water impoundments, or any other similar or like structure created or constructed as a result of or in connection with surface mining activities, as governed by article three, chapter twenty-two-a of this code, or from the use of surface in the conduct of underground coal mining as governed by articles one, two and three, chapter twenty-two-a of this code, and rules promulgated thereunder, which ponds, structures or impoundments are hereafter designated and certified in writing by the director of the department of natural resources and the owner to be necessary and vital to the growth and propagation of wildlife, animals, birds and fish or other forms of aquatic life, and finds and determines that the premises has the potential of being actually used by the wildlife for those purposes and that the premises are no longerused or necessary for mining reclamation purposes. The certification shall be in form satisfactory to the director and shall provide that the designated ponds, structures or impoundments shall not be removed without the joint consent of the director and the owner; and
(6) "Military training" includes, but is not limited to, training, encampments, instruction, overflight by military aircraft, parachute drops of personnel or equipment or other use of land by a member of the army national guard or air national guard, a member of a reserve unit of the armed forces of the United States, or a person on active duty in the armed forces of the United States, acting in that capacity.
§19-25-6. Severability Limiting duty of landowner for use of land for military purposes.

The provisions of this article are severable. If any section, subsection, sentence, clause or provision of this article is held invalid, the remainder of the article shall not be affected.
Notwithstanding the provisions of section four of this article to the contrary, an owner of land owes no duty of care to keep the premises safe for entry or use by others for military training purposes, regardless of whether any charge is made therefore, or to give any warning of a dangerous or hazardous condition, use, structure, or activity on the premises to persons entering for those purposes.
Notwithstanding the provisions of section four of this article to the contrary, an owner of land who either directly or indirectly invites or permits, either with or without charge, anyperson to use the property for military training purposes does not thereby (a) extend any assurance that the premises are safe for any purpose, or (b) confer upon those persons the legal status of an invitee or licensee to whom a duty of care is owed, or (c) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of those persons.
§19-25-7. Insurance policies.
Any policy or contract of liability insurance providing coverage for liability sold, issued or delivered in this state to any owner of lands covered under the provisions of this article shall be read so as to contain a provision or endorsement whereby the company issuing such policy waives or agrees not to assert as a defense on behalf of the policyholder or any beneficiary thereof, to any claim covered by the terms of such policy within the policy limits, the immunity from liability of the insured by reason of such insured recreational or military use status, unless such provision or endorsement is rejected in writing by the named insured.