Trail Hazard: How Recreation Laws Impede Mass Attack Cases

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By Steven M. Sellers

A string of recent massacres on boardwalks, bike paths, and other byways may test the strength of state immunity laws designed to encourage the public use of lands.

The laws, first proposed by the Council of State Governments in 1965 and now enacted in every state, shield public and private landowners from tort suits for injuries that occur while their properties are being used for public recreational use.

But those property owner protections come at the risk of restricting litigation options for victims of mass attacks that have occurred on public byways and who may, or already have, filed suits, lawyers tell Bloomberg Law.

Such suits generally allege bollards and other additional security measures would have prevented or minimized injuries.

Though the recreational use statutes likely won’t foreclose all mass attack tort claims, they make those claims, which usually boil down to whether or not the attacks were foreseeable, that much harder to bring.

Mass attack suits with the best chance of overcoming the immunity laws could be those stemming from attacks that occur in heavily developed, commercialized areas, like a bike path in New York City, the site of a recent fatal car ramming incident.

“There is tort liability in terrorist attacks,” plaintiff lawyer Daniel Flanzig, of Flanzig & Flanzig in Mineola, N.Y., said. “The issue always is whether there is notice of the event and is there a duty to those who are going to be harmed,” he said.

Defining the Defense

“In many instances, a landowner owes a duty to exercise reasonable care to protect people who are on the land,” said Timothy Lytton, a tort law professor at Georgia State University’s School of Law in Atlanta. “But it depends on why they are on the land, such as a landowner who invites people onto the land for commercial purposes.”

Recreational immunity statutes are an exception to that general rule of liability, Lytton said.

The laws “provide immunity in order to relieve the city of the burden of liability when they are seeking to turn over or open up public lands for use,” Lytton said.

“The idea is that liability might discourage the city from opening up bike paths or other types of areas, so the statutes are designed to grant immunity for what would otherwise be relatively normal liability for those places,” he said.

Recreational use statutes typically protect landowners against suits over land-based defects, and they also require something more than simple negligence.

“Gross misconduct or willful and wanton misconduct” is typically required, and “that’s a much higher burden” to prove, said James Kozlowski, a professor at George Mason University’s School of Recreation, Health, and Tourism in Fairfax, Va.

“It has to be repeated situations where, in response, there’s not just carelessness, but utter disregard,” said Kozlowski, who writes extensively on recreation laws.

Defeating the Defense

Some mass attack cases on public byways may be barred by the state recreational use statutes. But plaintiffs’ lawyers may be able to get around the immunity hurdle in other attack cases based on the wording of the laws, which vary by state.

That’s because immunity typically hinges on strict requirements for what kind of byways qualify as “recreational.”

The Oct. 31 car-ramming attack along the Hudson River Bike Path in Manhattan, where eight people were killed and a dozen more injured, is an example of how tort claims can proceed despite the state’s recreational use protections.

New York’s recreational immunity law applies only to a list of specific uses that include bicycling, sledding, hiking, and other activities.

The law is “relatively narrow” and generally doesn’t apply to areas that are highly developed, and “if it’s a city park there generally is no immunity from liability,” Lytton said.

There’s a strong argument that the Hudson River Bike Path—where Sayfullo Saipov allegedly drove around bollards to run-down cyclists and pedestrians—satisfies both of those immunity exceptions, Lytton said.

Flanzig regularly represents cyclists injured on the path. He agreed that an immunity defense wouldn’t succeed.

“That bike path is not necessarily a recreational use bike path,” said Flanzig, “It’s being used for transportation, it’s being used for commercial purposes by deliverymen for goods and products, so that in itself would take it out of the recreational use statute.”

Flanzig said any immunity defenses raised by the state or city in any suits will likely fail for another reason, too.

“Typically the negligence is going to occur before they even get onto the bike path, Flanzig said. “The negligence is going to be their failure to have the trail adequately secured, either by the use of bollards or roadblocks.”

Overlapping public and private ownership along the path further muddies any immunity protections that might be claimed under the New York law, Flanzig said.

Boardwalk Attack

“Trail immunity,” as it is sometimes called, can also be affected by economic development of a recreational byway over time, as evidenced by an Oct. 17 California decision stemming from a 2013 mass attack on the Venice Beach boardwalk in California.

The case involved an attack by Nathan Campbell, who drove his car onto the beach’s iconic boardwalk and intentionally ran over pedestrians, killing one and injuring 17 more.

The incident spawned a series of personal injury and wrongful death suits in which plaintiffs claim the city erected inadequate physical barriers to prevent the assault.

The boardwalk doesn’t fit the law’s definition of a trail as “any unpaved road which provides access to fishing, hunting, camping, hiking, riding” when it was lined with restaurants, shops, and other commercial establishments, the California Court of Appeal, Second Appellate District, said.

The ruling upheld the denial of a summary judgment sought by the City of Los Angeles.

Though not involving a mass attack, related claims involving Illinois’s recreational immunity law are pending in that state’s top court over commercial development along the Skokie Valley Bike Path in Highland Park, Ill.

The limits of other states’ immunity statutes also could soon be tested as New York and California were the locales of just two of four recent vehicle-ramming attacks in the U.S. The other attacks occurred in Virginia and Ohio.

In the Virginia incident, James Fields allegedly mowed-down counter-protestors on a public street in Charlottesville in August, killing one woman and injuring at least 19 more.

And in another attack in Ohio, Abdul Razak Ali Artan allegedly rammed his car into pedestrians on a plaza at Ohio State University, injuring at least 11 people in 2016.

Public Benefit

Aside from whether plaintiffs actually pierce the recreational use immunity enjoyed by private and public landowners, Lytton said he sees a public benefit from the litigation.

Liability concerns “may have a beneficial function not in pressuring states to remove these sorts of parks and byways, but actually make them safer, which is the traditional role of the tort system,” Lytton said.

Kozlowski agreed.

“The response is not more liability exposure but to harden the site,” Kozlowski said. “You don’t want people getting mowed down when they’re out trying to enjoy themselves.”

To contact the reporter on this story: Steven M. Sellers in Washington at

To contact the editor responsible for this story: Steven Patrick at

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