Senate Bill No. 576

(By Senators Wooton, Felton, Plymale, Minard,

Anderson, Dittmar and Yoder)

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[Originating in the Committee on the Judiciary;

reported March 29, 1993.]

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A BILL to amend and reenact sections one, two, three, four and five, article twenty-five, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to limiting liability of landowners who allow their property to be used for military training purposes.

Be it enacted by the Legislature of West Virginia:
That sections one, two, three, four and five, article twenty-five, chapter nineteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 25. LIMITING LIABILITY OF LANDOWNERS.
§19-25-1. 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 theacts or omissions of persons entering thereon.
§19-25-2. Limiting duty of landowner generally.
Subject to the provisions of section four of this article, an owner of land owes no duty of care to keep the premises safe for entry or use by others for military training or recreational or wildlife propagation purposes, or to give any warning of a dangerous or hazardous condition, use, structure or activity on such premises to persons entering for such purposes.
Subject to the provisions of section four of this article, an owner of land who either directly or indirectly invites or permits without charge any person to use such property for military training or recreational or wildlife propagation purposes does not thereby: (a) Extend any assurance that the premises are safe for any purpose; or (b) confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or (c) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of such persons.
§19-25-3. 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 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 anycounty or municipality or agency thereof, for military training or recreational or wildlife propagation purposes shall not by giving such lease: (a) Extend any assurance to any person using the land that the premises are safe for any purpose; or (b) confer upon such persons the legal status of an invitee or licensee to whom a duty of care is owed; or (c) assume responsibility for or incur liability for any injury to person or property caused by an act or omission of a person who enters upon the leased land. The provisions of this section apply whether the person entering upon the leased land is an invitee, licensee, trespasser or otherwise.
§19-25-4. Application of article.
Nothing herein limits in any way any liability which otherwise exists: (a) For willful or malicious failure to guard or warn against a dangerous or hazardous condition, use, structure, or activity; or (b) for injury suffered in any case where the owner of land charges the person or persons who enter or go on the land other than the amount, if any, paid to the owner of the land by the state or any agency thereof, or any county or municipality or agency thereof.
Nothing herein creates a duty of care or ground of liability for injury to person or property.
Nothing herein limits in any way the obligation of a person entering upon or using the land of another for military training or recreational or wildlife propagation purposes to exercise due care in his or her use of such land and in his activities thereon.
§19-25-5. Definitions.
For purposes of this article: (a) The term "land" includes, but is not limited to, roads, water, watercourses, private ways and buildings, structures and machinery or equipment thereon when attached to the realty; (b) the term "owner" includes, but is not limited to, tenant, lessee, occupant or person in control of the premises; (c) the term "recreational purposes" includes, but is not 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" 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 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 this code, and regulations promulgated thereunder, which ponds, structures or impoundments are hereafter designated and certified in writing by the director of the division of natural resources and the owner to be necessary and vital to the growth and propagation of wildlife, animals, birds and fish or other forms of aquatic life and finds and determines that 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 andshall provide that such designated ponds, structures or impoundments shall not be removed without the joint consent of the director and the owner; (e) the term "charge" means the amount of money asked in return for an invitation to enter or go upon the land; and (f) the term "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 West Virginia 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 such capacity.

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(NOTE: The purpose of this bill is to limit the liability of landowners who allow their land to be used for military training purposes.)