Cities and towns regularly allow the public to use municipal property for recreation. In South Carolina, such property ranges from neighborhood parks and greenways to sports complexes, multi-use trails, and waterways with fishing or boating access. Unfortunately, injuries sometimes occur in recreational activities, and municipalities might ask themselves whether opening public property for recreation exposes them to liability.
Since 1962, South Carolina law has largely answered that question in the negative. Found in SC Code Section 27-3-10, the Recreational Use Statute is expressly intended “to encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.”
Generally, the statute indicates that a landowner who allows the public to use land for recreational purposes without charge owes no duty of care to those users. In other words, the owner allowing use of the property is not representing that the property is safe, and does not assume responsibility for injuries caused by conditions on the property.
The statute applies to all landowners, including local governments. A municipality that opens a park, trail or lake enjoys the same legal protections as a private owner.
South Carolina courts have consistently construed the statute broadly, and have frequently upheld immunity. Even so, that protection is subject to important limitations:
- The injured person must have been using the property for a recreational purpose.
- The owner must not have charged for that use.
- The law does not shield gross negligence, nor does it shield willful or malicious conduct.
Recreational purposes
In SC Code Section 27-3-20(D), the statute defines “recreational purposes” to include, but not to be limited to, “hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, summer and winter sports, aviation activities, and viewing or enjoying historical, archaeological, scenic, or scientific sites.”
In many cases, the question of whether an activity is considered “recreational” is straightforward. Municipal parks, greenways, trails, sports fields, and similar facilities are plainly intended as recreational properties. Even low-intensity activities like walking, sitting or picnicking are within the statute’s scope.
When the property serves more than one function, however, the question becomes more complex. The Recreational Use Statute may not apply to property that the public uses not only for recreation but also for commercial or governmental activities. Facilities that generate revenue, host programmed or ticketed events, or are closely integrated into day-to-day municipal operations can present harder questions about whether the land is truly being held open for recreational purposes alone.
For example, in the 2011 case Harris v. University of South Carolina, the Court of Appeals considered whether the statute applied to injuries sustained on a boardwalk located on a university-owned island that served multiple purposes, including recreational beach access and university education and research activities. The court focused on the plaintiff’s purpose in entering the property and concluded that, because the visit was recreational, the statute applied.
Charging for use
The Recreational Use Statute does not apply if the landowner charges a fee for the recreational use itself. Charging an admission charge to access a facility like a park or trail is likely to invalidate the law’s protections.
Still, a charge for something ancillary to the recreational use — such as vehicle parking — likely would not invalidate the protections, especially if the recreational land remains freely accessible to the public on foot or by other means. In that case, the owner is not conditioning the recreational use itself on payment.
Although South Carolina courts have not exhaustively explored the question, the statute’s focus on charges “for the recreational use” supports a distinction between true admission fees and incidental costs unrelated to the activity itself.
Gross negligence
The statute protects landowners from liability for ordinary negligence, but not for gross negligence, or willful or malicious conduct.
The South Carolina Supreme Court has described gross negligence as a conscious or intentional failure to do something the owner is obligated to do, or the intentional doing of something that should not be done. The Fourth Circuit has explained that a willful failure to guard or warn requires actual knowledge of a concealed condition posing an unreasonable risk of death or serious bodily harm, coupled with a deliberate decision not to act despite that knowledge. However, the courts have made clear that claims for gross negligence cannot be based on a duty to inspect, or on constructive notice, which is a legal concept that assumes that an owner should have known of a danger in a situation where a reasonably diligent person would have known.
In plain terms, this means that landowners with actual notice of a manifestly dangerous condition, structure, or activity should take reasonable steps to address or mitigate the risk.
Property owners should consider nuances
For municipalities, the Recreational Use Statute is a powerful and often dispositive protection. It reflects a legislative judgment that communities should not be penalized for opening land to the public for recreation.
The protection is not automatic, however. Mixed-use properties, fees tied to access, and allegations of gross negligence can all complicate the analysis and warrant closer attention.