Senate Bill No. 43
(By Senators Tomblin (Mr. President), and Boley
By Request of the Executive)
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[Introduced January 12, 1996; referred to the Committee
on Education; and then to the Committee on the
Judiciary.]
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A BILL to amend and reenact sections one, two, five and seven,
article twenty-five, chapter nineteen of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to amend and reenact section five, article twelve-a,
chapter twenty-nine of said code, all relating to limiting
liability of landowners for recreational or educational use
of their land without charge; including county boards of
education and other political subdivisions within definition
of landowners whose liability is to be limited; providing
insurance coverage for such liability; and stating the
immunity from liability that is provided for political
subdivisions of the state.
Be it enacted by the Legislature of West Virginia:
That sections one, two, five and seven, article twenty-five,
chapter nineteen of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, be amended and reenacted, and
that section five, article twelve-a, chapter twenty-nine of said
code be amended and reenacted, to read as follows:
CHAPTER 19. AGRICULTURE
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 and to
further encourage county boards of education or other political
subdivisions of the state to make available to the public land
for community education and recreational purposes by limiting
their the liability of these owners of land toward persons
entering thereon and toward persons who may be injured or
otherwise damaged by the acts or omissions of persons entering
thereon.
§19-25-2. 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 recreational or wildlife
propagation purposes or, in the case of a county board of
education or other political subdivision of the state, for
community education 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
recreational or wildlife propagation purposes or, in the case of
a county board of education or other political subdivision of the
state, for community education 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.
§19-25-5. Definitions.
Unless the context used clearly requires a different meaning, as used in this article:
(1) "Charge" means:
(A) For purposes of limiting liability for recreational or
wildlife propagation purposes set forth in section two of this
article, the amount of money asked in return for an invitation to
enter or go upon the land, including a one-time fee for a
particular event, amusement, occurrence, adventure, incident,
experience or occasion which may does not exceed fifty dollars a
year per recreational participant;
(B) For purposes of limiting liability for military training
set forth in section six of this article, the amount of money
asked in return for an invitation to enter or go upon the land;
(2) "Land" ,in addition to the realty, includes, but shall
not be limited to, the following when situated on or in the
realty: roads, water, watercourses, private ways and buildings,
structures and attached machinery or equipment; thereon when
attached to the realty
(3) "Noncommercial recreational activity" shall not include
any activity for which there is any charge which exceeds fifty dollars per year, per participant;
(4) "Owner" includes, but shall not be limited to, tenant,
lessee, occupant or person in control of the premises, or a
county board of education or other political subdivision of the
state;
(5) "Recreational purposes" includes, but shall not be
limited to, any one or any combination of the following
noncommercial recreational activities: Hunting, fishing,
swimming, boating, camping, picnicking, hiking, pleasure driving,
motorcycle or all terrain vehicle riding, bicycling, horseback
riding, nature study studying, water skiing, participating in
winter sports and visiting, viewing or enjoying historical,
archaeological, scenic or scientific sites or otherwise using
land for purposes of the user, including using the property of a
county board of education or other political subdivision of the
state for athletic, sporting, or other community events;
(6) "Wildlife propagation purposes" applies to and includes
all ponds, sediment control structures, permanent water
impoundments or any other similar or like structure created or constructed as a result of or in connection with surface mining
activities, as governed by article three, chapter twenty-two of
this code, or from the use of surface in the conduct of
underground coal mining as governed by said article, and rules
promulgated thereunder, which ponds, structures or impoundments
are hereafter designated and certified in writing by the director
of the division of environmental protection and the owner to be
necessary and vital to the growth and propagation of wildlife,
animals, birds and fish or other forms of aquatic life, and finds
and determines that the premises has the potential of being
actually used by the wildlife for those purposes and that the
premises are no longer used or necessary for mining reclamation
purposes. The certification shall be in form satisfactory to the
director and shall provide that the designated ponds, structures
or impoundments shall not be removed without the joint consent of
the director and the owner; and
(7) "Military training" includes, but it not limited to,
training, encampments, instruction, overflight by military
aircraft, parachute drops or 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 State or a person on active duty in the armed forces of
the United States, acting in that capacity; and
(8) "Community education" includes, but is not limited to,
any educational program offered to the community or specific
segments of the community by any entity organized or operating
exclusively for an educational or charitable purpose or offered
to the community or specific segments of the community by any
other entity as a charitable or educational program or event for
the benefit of the community and not for the purpose of making a
profit for or to the benefit of the entity.
§19-25-7. Insurance policies.
Any policy or contract of liability insurance providing
coverage for liability that is 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 the use of such insured's land for
recreational, wildlife propagation or military purposes, unless
such provision or endorsement is rejected in writing by the named
insured: Provided, That the provisions of this article shall
not apply to any policy or contract of insurance providing
coverage for liability that is sold, issued or delivered to a
county board of education or other political subdivision of the
state.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.
ARTICLE 12A. GOVERNMENTAL TORT CLAIMS AND INSURANCE REFORM ACT.
§29-12A-5. Immunities from liability.
(a) A political subdivision is immune from liability if a
loss or claim results from:
(1) Legislative or quasi-legislative functions;
(2) Judicial, quasi-judicial or prosecutorial functions;
(3) Execution or enforcement of the lawful orders of any
court;
(4) Adoption or failure to adopt a law, including, but not limited to, any statute, charter provision, ordinance,
resolution, rule, regulation or written policy;
(5) Civil disobedience, riot, insurrection or rebellion or
the failure to provide, or the method of providing, police, law
enforcement or fire protection;
(6) Snow or ice conditions or temporary or natural
conditions on any public way or other public place due to weather
conditions, unless the condition is affirmatively caused by the
negligent act of a political subdivision;
(7) Natural conditions of unimproved property of the
political subdivision;
(8) Assessment or collection of taxes lawfully imposed or
special assessments, license or registration fees or other fees
or charges imposed by law;
(9) Licensing powers or functions including, but not limited
to, the issuance, denial, suspension or revocation of or failure
or refusal to issue, deny, suspend or revoke any permit, license,
certificate, approval, order or similar authority;
(10) Inspection powers or functions, including failure to make an inspection, or making an inadequate inspection, of any
property, real or personal, to determine whether the property
complies with or violates any law or contains a hazard to health
or safety;
(11) Any claim covered by any worker's compensation law or
any employer's liability law;
(12) Misrepresentation, if unintentional;
(13) Any court-ordered or administratively approved work
release or treatment or rehabilitation program;
(14) Provision, equipping, lawful operation or maintenance
of any prison, jail or correctional facility, or injuries
resulting from the parole or escape of a prisoner;
(15) Any claim or action based on the theory of
manufacturer's products liability or breach of warranty or
merchantability or fitness for a specific purpose, either
expressed or implied;
(16) The operation of dumps, sanitary landfills, and
facilities where conducted directly by a political subdivision;
or
(17) The issuance of revenue bonds or the refusal to issue
revenue bonds; or
(18) Use of property of a county board of education or other
political subdivision of the state in accordance with the
provisions of article twenty-five, chapter nineteen of this code.
(b) An employee of a political subdivision is immune from
liability unless one of the following applies;
(1) His or her acts or omissions were manifestly outside the
scope of employment of official responsibilities;
(2) His or her acts or omissions were with malicious
purpose, in bad faith, or in a wanton or reckless manner; or
(3) Liability is expressly imposed upon the employee by a
provision of this code.
(c) The immunity conferred upon an employee by subsection
(b) of this section does not affect or limit any liability of a
political subdivision for an act or omission of the employee.
NOTE: The purpose of this amendment is to protect county
boards of education and other political subdivisions of the state
from tort liability for the recreational use, without charge, or community education use, without charge, of property owned by the
county boards of education and other political subdivisions,
consistently with the immunity granted to private landowners by
article twenty-five, chapter nineteen of the Code of West
Virginia, 1931.
Other technical corrections are made to the provisions
affected by the amendment.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates language that
would be added.