Senate Agriculture Committee
February 4, 2025
Senator Steve Crowell [00:00:02] Bill 146, tourism is the second largest industry in the state and we have many state parks and land. But we encourage people to let their public property be used for recreational purposes. There's a law that was put in years ago and there was lots of things put in it, but this is just an update.
We're adding a few things. This is going to add horseback riding, cycling, mountain biking, rock climbing, skateboarding, hoverboarding and paddleboarding. Just to limit liability of private land owners. So it's a pretty simple, straightforward bill.
Senator Ronald Caldwell [00:00:40] Questions from the committee? And we'll give everybody a few minutes. Senator Hickey, you're recognized.
Senator Jimmy Hickey Jr. [00:00:54] Thank you, Mr. Chair.
Senator Ronald Caldwell [00:00:55] Your name for the record.
Senator Jimmy Hickey Jr. [00:00:57] Me?
Senator Ronald Caldwell [00:00:57] No, go ahead. I'm sorry.
Senator Jimmy Hickey Jr. [00:00:59] Thank you.
Senator Ronald Caldwell [00:01:01] I want everybody to know who you are.
Senator Jimmy Hickey Jr. [00:01:01] It's just a question. So does the property owner, is there some type of disclosure that they have to have or something of that nature? Or if somebody just comes on to their property and they say they're horseback riding, but they haven't really given them their permission, is that going to also exclude them from any liability?
Senator Steve Crowell [00:01:31] Let me let legal counsel answer.
Clay Stone [00:01:46] Clay Stone, General Counsel, Parks, Heritage and Tourism.
Senator Ronald Caldwell [00:01:50] You're recognized.
Clay Stone [00:01:50] So the existing bill is for private landowners, primarily private landowners that wish to open their property up for fishing and other activities for the community or people to be involved in it. They invite the person. And it's not where somebody just goes on somebody's private property without their knowledge. And it doesn't give the public a right to enter onto private property.
Senator Jimmy Hickey Jr. [00:02:18] And my question, I don't disagree with your bill, so let me say that on the front end. But what I've also been told in the past, and maybe this is a little outside the scope of this, but I think it's all inclusive. So if somebody comes onto your property and gets hurt and you haven't invited them, then you as the property owner could possibly assume some type of liability or some charge could be made against your insurance policy. So here's my thing. If we're going to exempt it, if somebody allows it to happen, then should we also not exempt it if, although they haven't allowed it to happen, they shouldn't be liable either.
Clay Stone [00:03:00] That's a totally different legal issue in terms of invitees and non invitees and open and dangerous.
Senator Jimmy Hickey Jr. [00:03:08] I understand. But by the same token. So that's my next deal. So if somebody trespasses on, I'll use my property just as a subject matter, so if somebody trespasses on me and I haven't given them permission, I'm still liable. But if I have given them permission, I'm not liable. So do I always, not that I'd want to lie, but do I always say, Yup, they had permission?
Clay Stone [00:03:35] Well, it's a little bit different in terms of the common law. If somebody goes onto your property and they're riding a horse and the horse slips on something and they fall off, if they were trespassing, you wouldn't have liability in that instance.
Senator Jimmy Hickey Jr. [00:03:56] Okay. If there's money involved, does that change this in any way?
Senator Ronald Caldwell [00:04:04] Pull your mic a little closer.
Senator Jimmy Hickey Jr. [00:04:08] I'm sorry.
Clay Stone [00:04:08] This existing bill only applies when the landowner is not charging a fee.
Senator Jimmy Hickey Jr. [00:04:13] Okay. And does that say that in here? Is that just a definition of recreational or where is that?
Clay Stone [00:04:20] So in 18-11-302 in the definitions. There's a definition for charge. And then later on, it maybe the earlier statute that may not be before you. It discusses making land and water areas available for public for recreational use, limiting their liability. But if they do not charge, that's what gives them the.
Senator Jimmy Hickey Jr. [00:04:48] So that's included in that Arkansas code . Okay.
Catherine Andrews [00:04:53] Senator Hickey, if I may, Catherine Andrews, director of the Office of Outdoor Recreation. There are really three types of ways that people can come onto your property. One is trespassing, and that, to Clay's point, is a totally separate legal issue. Two is if you invite them to come on to your property for free. Three is if they are paying to come onto your property. So this middle one, the one where you're inviting them to come onto your property for free is where this statute comes into play.
Senator Jimmy Hickey Jr. [00:05:24] Okay. According to what you said on the trespass.
Senator Ronald Caldwell [00:05:30] Pull your mic in.
Senator Jimmy Hickey Jr. [00:05:31] According to what you said with the trespass, so you don't think the property owner would be liable in that case either under our current statute?
Clay Stone [00:05:40] If you're opening your property up for recreational purposes without a charge, this statute gives you a release for liability if you're just a private land owner. There's a wide variety of situations, like there's open and notorious conditions. You know, if you have a swimming pool and you don't have a fence on it, but kids are coming in and getting in your pool without your permission and you allow that to go on. I mean, in terms of the trespass, the common law tort area is way beyond this bill.
Senator Jimmy Hickey Jr. [00:06:11] Okay. So that leads me to another one. We can do swimming pools or I was going to ask about lakes. So if you do have a pond or something and you allow kids to go in there and swim for recreational purposes, you're not going to assume any liability within that pond or lake?
Clay Stone [00:06:31] Now there is a case, and I'm not prepared to answer that much detail, but there was a case in federal court about whether or not there was-- there are exemptions for like malicious actions, maybe gross negligence. I'd have to go back and look. But certain situations, you could be if you knew and allowed a dangerous condition and people to still go in it.
Senator Jimmy Hickey Jr. [00:06:57] Even after we pass this law.
Clay Stone [00:07:00] So swimming is already in there.
Senator Jimmy Hickey Jr. [00:07:02] Okay. Fair enough.
Catherine Andrews [00:07:06] And that you're referring to is the trespassing piece of it, not this. So if somebody comes onto your property and they go swimming and they get hurt and you didn't know about it, then that's one thing. But if you lured them in or if you knew about a very dangerous condition and didn't do anything about it and they were trespassing, that's a totally different issue.
Senator Jimmy Hickey Jr. [00:07:30] Mine was is if you're just allowing them to swim there for recreational purposes, you know it's happening or you know it's not safe. I just hope we're not opening up some unintended consequences here. So, again, from a macro level, I'm for what you're trying to do. I just hope we thought this all the way through.
Clay Stone [00:07:49] Well, I'll point out the original act was passed in 1965. So we've had it for 60 years. And this amendment simply adds a few additional categories that were mentioned earlier.
Senator Jimmy Hickey Jr. [00:08:03] 59 years. I was born in 66.
Senator Ronald Caldwell [00:08:08] Senator Gilmore.
Senator Ben Gilmore [00:08:10] Thank you. So just following up on those. I know later in the statute 18-11-304, it specifically talks about the landowner owes no duty of care and goes through all those things. So I think there's a lot of coverage there. But I guess my question is, why do we enumerate any of these things? Why don't we just say for recreation purpose and be done?
Clay Stone [00:08:30] So we've talked about that as well, because you do have kind of a catch all at the end. But because there are some that are enumerated, and I believe Catherine can speak to this, there were some people that are involved in cycling or mountain biking that asked, can we have this? Can we also be enumerated in here? Because if you have this catchall-- now mountain biking, we might all agree is-- but is hoverboarding? Is that a recreational purpose? And so we're only adding a few here, and those are ones that are actually public has asked.
Catherine Andrews [00:09:13] And there are up and coming activities like rock climbing, cycling, things are that are priorities within the Department of Parks, Heritage and Tourism, things that we're building within our state parks and other recreational areas. And so specifically lining those out helps a private landowner to say, okay, if people are coming onto my property specifically to do this, then things are good. Sometimes when it's in that catchall, it's kind of a gray area. And private landowners say, Well, I don't know if spelunking is in there, if that's counted. So I'm not going to let anybody do that. So by lining out specifically what those are, it helps clear up that gray area.
Senator Ben Gilmore [00:09:53] Well, I'm a big fan of spelunking myself. But I think that's helpful. Look, I think I'm good with the bill. I just didn't know why we basically say recreational purpose without limitation, then we list the following.
Marty Ryall [00:10:11] Just want to add one thing. Marty Ryall, director of Legislative Affairs, Parks, Heritage and Tourism.
Senator Ronald Caldwell [00:10:15] Closer to the mic. We're having trouble on that.
Marty Ryall [00:10:17] Marty Ryall, Director of Legislative Affairs, Parks, Heritage and Tourism. Also, as we encourage these activities, there are situations where you have public trails on one end, a public trail here, and there's private land in between that we want to encourage those landowners to have access for the cycling to go through that private land. And so that's another situation that this would help with
Senator Ronald Caldwell [00:10:41] Senator Scott.
Senator Jamie Scott [00:10:46] Thank you, Mr. Chair. I think the only question I had was about swimming for property owners. Okay. So, if you had kids in your neighborhood who jumped your fence to swim and they couldn't swim, that could be-- so how is that? How was--
Catherine Andrews [00:11:10] That's technically trespassing.
Senator Jamie Scott [00:11:11] Okay. So that would all be covered under trespassing?
Catherine Andrews [00:11:14] Right.
Senator Jamie Scott [00:11:14] And there wouldn't be liability on the owner or--
Clay Stone [00:11:18] I can't give you a specific case, but I do know there have been cases where if you have something like a pool and you know that neighborhood kids are using it or you know that a kid that can't swim is using it or has been over there, the common law may impose some liability in that instance. I can't give you a definitive yes or no, but swimming again was already included in this.
Senator Jamie Scott [00:11:50] So I grew up and my parents, my grandparents had a pool, and kids from the neighborhood always jumped our brick fence to like swim. And so some of them, a lot of minorities can't swim. So my grandparents were never given them the okay to come swim in our private pool. But I'm just wondering the liability for land owners who have a pool. But you are saying that that's probably covered under trespassing?
Clay Stone [00:12:15] Yes.
Senator Jamie Scott [00:12:17] Even if they're not telling the kids, hey, you can come swim in my pool?
Clay Stone [00:12:21] Well, that would be the trespassing part of that. If somebody goes in your backyard and jumps in your pool uninvited, they're not an invitee.
Senator Ronald Caldwell [00:12:37] Senator Leding.
Senator Greg Leding [00:12:39] Thank you, Mr. Chair. I had some of the same concerns that Senator Hickey did, but I think I feel better now. But since we are enumerating these and since it was mentioned, I'm familiar with all of these activities except the very last one. And maybe because it comes after skateboarding, I can't help but picture Michael J. Fox. Can you explain to us what hoverboarding is and have you ever been?
Catherine Andrews [00:12:57] I have not. I'm not quite as adventurous as those that hoverboard, but there's a few different types that are coming out, like a one wheel where, if you've ever seen a skateboard, but it's got one wheel and you put both your legs on it or your feet on it. There's those. And then there are some that are able to hover above trails. They're very uncommon, but they are coming. So they're out there.
Senator Greg Leding [00:13:25] So they're levitating.
Catherine Andrews [00:13:27] In some form or fashion. Some of them are.
Senator Greg Leding [00:13:29] Okay. Thank you.
Senator Ronald Caldwell [00:13:31] Don't feel intimidated by his questions because last session he had to explain artificial insemination and he's never participated in that either. So you'll never live that one down. Any other questions, committee? Senator Hickey, go ahead.
Senator Jimmy Hickey Jr. [00:13:47] So just, again, I understand that we've already got this in place other than what you're adding, but this has just kind of brought up some things. And Senator Gilmore, like under the current statute, it literally says an owner of land owes no duty of care to keep the premises safe for entry or use by others.
Of course, I think if you own a, we'll use the pool. I mean, so insurance companies, though, I guess they can still require that as a condition to insure the property. Is that the reason that's happening? And it just seems odd to me because I've always heard that, if you have a pool, that you're required to fence it or whatever.
And again, we have a statute on the books, maybe it is since 1965, which I guess it would be 60 years if it was January, February. But according to this statute, I don't even know how they're doing that. The owner of the land owes no duty or care to keep the premises safe for entry or use. I
Catherine Andrews [00:14:48] If it's trespassing, and you knowingly know that you have a really dangerous something on your property, then there is some liability in that.
Senator Ronald Caldwell [00:15:06] Senator Scott.
Senator Jamie Scott [00:15:08] So to me, because I can swim and I was a lifeguard, the nine feet pool was not deep to me. But if there's kids in the neighborhood who are jumping the fence, that might be knowingly dangerous to them. So that's kind of confusing to me.
Catherine Andrews [00:15:25] In that instance, the landowner would need to do something like put up a fence around their pool.
Senator Jamie Scott [00:15:31] So the fence would just clear them.
Catherine Andrews [00:15:33] In the trespassing instance, yes. In the private inviting, I don't think so. I think you're covered under the statute as it stands.
Senator Jamie Scott [00:15:46] Do you understand my concern, what I'm saying?
Clay Stone [00:15:48] I do.
Senator Ronald Caldwell [00:15:50] Senator Gilmore.
Senator Ben Gilmore [00:15:51] So I guess just to sort of recap and get it straight in my mind, you have coverage as landowner to provide for recreational activities. This just gives landowners a level of more comfort or whatever it is, knowing that these things are specifically enumerated. Correct?
Clay Stone [00:16:08] Yes.
Senator Ben Gilmore [00:16:09] Great. Motion at the proper time, Mr. Chair.
Senator Ronald Caldwell [00:16:14] Any other questions? Senator Crowell, would you like to close for your bill? Excuse me. Do we have anybody signed up? Okay. No one signed up. Is there anyone in the audience who would like to speak for or against the bill? You have to come to the table. If you would state your name for the record and you're recognized to ask your question.
Marty Oleson [00:16:56] Hi, I'm Marty Oleson. I was listening and I was just wondering, does this mean that a landowner, there's a bike trail here and it picks up here and you're here and it would cross your land, do you have to have it posted that this is open to the public, but you're not liable? I mean, is there any requirement for having it posted or is that a given?
Senator Steve Crowell [00:17:24] I'll have to look at that, to be honest with you.
Marty Oleson [00:17:30] I was just wondering.
Senator Ronald Caldwell [00:17:33] Get with him after the meeting. Anyone else? Seeing no one, Senator Crowell, would you like to close for your bill?
Senator Steve Crowell [00:17:41] Yes. I'd ask for a good vote. I make a motion to pass.
Senator Ronald Caldwell [00:17:44] Motion. Senator Gilmore, second. All in favor, say aye. All opposed. Congratulations, your bill passes. We'll try to get it passed on the floor for you this go round. So for those that's a private joke. And Senator Crowell tried to get a bill passed one time and he got such a negative vote on the floor that he was going to vote against his own bill. I've been told that Senator Johnson is making an amendment on his bill, so that bill will not be heard today. I'm sorry. Senator Leding, you have a question?
Senator Greg Leding [00:18:15] Does that mean we can maybe expect him to run it on Thursday or can he set a special order of business? Because I imagine most everybody here in the room, with all respect to Senator Crowell, was probably here for that piece of legislation.
Senator Ronald Caldwell [00:18:25] I'll visit with Senator Johnson on it. I can't answer that question right now because I haven't seen the amendment. We don't have it. And I don't want to speak for something I don't have in hand.
Senator Greg Leding [00:18:34] That's fair. Thank you.
Senator Ronald Caldwell [00:18:34] That's fair enough. Okay. We're adjourned.
