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.