Two years ago, I posted this blog article about the Colorado Recreation Use Statute (“CRUS”). CRUS was passed decades ago to encourage private landowners to allow recreational use of their property by limiting liability if the recreators are injured. The statute shields landowners from liability for injured recreators except “for willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.” C.R.S. § 33-41-104(1)(a). This statute did not shield the United States Air Force from a multi-million dollar judgment in favor of an injured cyclist. After that case, some landowners stopped allowing recreators on their land for fear of liability.
The legislator addressed this issue in the 2024 session, passing Senate Bill 58. You can look it up here. Senate Bill 58 amends CRUS by giving landowners a way out of being liable in cases of a “willful or malicious failure to guard or warn against a known dangerous condition, use, structure, or activity likely to cause harm.” The way out – post a sign. The sign must describe the “dangerous condition, use, structure, or activity that caused the injury.” The sign must be posted “in a location and manner that makes the sign visible to an individual at the primary access point” and the landowner must “maintain photographic or other evidence of such sign.”
Will this make landowners more comfortable with allowing recreators on their land? I’m not so sure. There are some flaws:
- It seems risky for a landowner to depend on the existence of a sign. The requirement that the landowner “maintain evidence” of the sign suggests that simply posting the sign at some point in the past is enough. But what if the sign gets stolen, vandalized, or knocked down by natural forces? All are common events in the wilderness.
- If someone gets hurt in a way that the sign does not mention, then the protection goes away. It is unrealistic for a landowner to warn about every conceivable way someone could get hurt.
- The terms “visible” and the “primary access point” add more litigation issues, as these terms are subjective.
- This new “signage” defense requires action on the part of landowners – it does absolutely nothing for landowners who don’t make the effort to put up signs.
- The new law puts the burden of proof on the landowner if there is litigation, as a sort of affirmative defense.
Senate Bill 58 also states that anyone who leaves a “designated recreational trail, route, area, or roadway” without the owner’s permission is deemed a trespasser, but what does this mean? This provision seems to call for even more signage to “designate” where recreators are allowed to go, which may be difficult in practice.
My conclusion – the change in the law does increase liability protections for landowners who allow recreators on their property, at least for the landowners who take advantage of it. The law definitely does not create an impenetrable wall. No law can do that. Lawsuits will still be filed when someone is injured badly enough, because the potential damages are high enough to incentivize a potential plaintiff’s lawyer.