Sallee v. Stewart and Iowa’s Recreational Land Use Immunity Doctrine

There have been many questions/concerns raised by the Iowa Supreme Court’s recent ruling in Sallee v. Stewart, in which the Court was asked to interpret Iowa’s Recreational Land Use Immunity doctrine. Like most of my colleagues, I’ve read the relevant court cases and studied the applicable statutes, and I’ve reviewed  House File 605, the Farm Bureau’s proposed bill intended to fix the “crisis” allegedly created by the Sallee ruling – and like many others, I’ve concluded that the actual impact of the Sallee ruling on Iowa’s recreational land use immunity doctrine is minimal, and that the Farm Bureau’s proposed legislation is an over-reaction to Sallee’s extremely narrow holding.

What is Recreational Land Use Immunity

Ordinarily, if you invite people onto your land, you have a duty to use reasonable care to either ensure that the premises are in a reasonably safe condition, or to warn your guests about any dangerous condition that isn’t obvious to them but of which you are, or should be, aware. And if you don’t do that, and someone gets hurt on your property, and if they sue you and can prove that their injury is due to your failure to use reasonable care – i.e., your negligence – then most likely your homeowner’s premises liability policy is going to be paying out for their damages. Mistakes happen, and that’s why we have insurance, right?

But back in the seventies, in order to encourage private landowners to make their land/water areas available to the public for outdoor recreational purposes, the Iowa legislature passed Iowa Code Chapter 461C, which decreed that “an owner of land owes no duty of care to keep the premises safe for entry or use by others for recreational purposes, or to give any warning of a dangerous condition, use, structure, or activity on such premises to persons entering for such purposes.” 461C.2 defines “recreational purposes” as: hunting, trapping, horseback riding, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, motorcycling, nature study, water skiing, snowmobiling, other summer and winter sports, and viewing or enjoying historical, archaeological, scenic, or scientific sites while going to and from or actually engaged therein.

So the general idea behind Iowa’s Recreational Land Use Immunity Doctrine is that if folks choose to take advantage of a landowner’s generosity and enter onto his (generally unfamiliar to them) land to engage in any of the “recreational activities” set out in 461C.2, they do so at their own risk, and the landowner cannot be held responsible for any injuries related to a dangerous condition of the land (e.g., if a hunter trips over a hidden tree stump) unless the landowner acts “willfully or maliciously” (e.g., invites a group to set up camp in a specific field and fails to warn them of the fact that the field is known by the farmer to be completely infested with a rare and very poisonous type of tiny ant).

OK – so what happened in the Sallee v. Stewart case?

 The Stewart family owns a dairy farm in Northeast Iowa, and often provided groups of students with (free of charge) guided tours of their farm. In May of 2010, Ms. Sallee was a chaperone for one such guided student tour, which ended with a visit to the barn’s hayloft to allow the children to play on and around the bales of hay stored in the hayloft.

Mr. Stewart accompanied the group to the hayloft – he assisted them up the ladder, and warned the children not to climb too high. Mr. Stewart did not warn or mention to the group the fact that some of the hay bales were placed on top of large holes in the floor, totally covering the holes from view (these “hay drops” were normally used to push hay down to the cows in the barn below). There was testimony that earlier in the day, while inspecting the hay loft, Mr. Stewart had stood on each of the bales of hay covering a hay drop to ensure its sturdiness; unfortunately, when Ms. Sallee (who was described in the ruling as a “large woman”) stood on one of these bales of hay, it collapsed under her weight and she fell through the floor, sustaining serious injuries.  Eventually, Ms. Sallee sued the Stewarts, and the Stewarts’ insurance company moved for summary judgment, citing Iowa’s recreational land use immunity doctrine.

How did the District Court rule in the Sallee v. Stewart case?

The District Court ruled in favor of the Stewarts’ insurance company, finding that Ms. Sallee was present at the Stewarts’ farm for a recreational purpose, and thus the Stewarts owed her no legal duty to ensure her safety and/or to provide her with any warning of the possible danger posed by the holes in the hayloft floor, even though Ms. Sallee couldn’t see the holes since the Stewarts had covered them up with bales of hay.

How did the Court of Appeals rule in the Sallee v. Stewart case?

Ms. Sallee appealed the District Court’s ruling to the Iowa Court of Appeals; its ruling  agreed with the District Court that in their capacity as landowners, the Stewarts enjoyed immunity from liability for Ms. Sallee’s injuries – but then went on to rule that nonetheless, Ms. Sallee had a cause of action against the Stewarts under a “negligent supervision” liability theory. The Court reasoned that by putting themselves in charge of where the tour group went and what the tour group did while on the farm, the Stewarts voluntarily assumed the role/status of “tour guides,” and as such they had a duty to warn Ms. Sallee about possible dangers associated with the tour-related activities of which the Stewarts were or should have been aware but which Ms. Sallee could not reasonably be expected to have anticipated.

How did the Iowa Supreme Court rule in the Sallee v. Stewart case?

The Stewarts appealed this ruling to the Iowa Supreme Court, which, somewhat surprisingly, issued a majority opinion that specifically declined to adopt the Court of Appeal’s “tour guide” liability theory, and instead held that Ms. Sallee had a right to move forward with her premises liability claim against the Stewarts for the simple reason that  “playing in the hay” was not one of the “recreational activities” set out in Iowa Code section 461C.2 –  and thus the recreational land use immunity doctrine did not apply under the specific facts of the case. And that’s really the complete sum and total of the Sallee holding: that “playing in the hay” isn’t a recreational activity for purposes of Iowa’s recreational land use immunity doctrine. Period.

Does Sallee reduce landowners’ protection under the recreational land use immunity doctrine?

In a word – NO. It’s true that in the long and somewhat rambling discussion of the origins and nature of the recreational land use immunity doctrine leading up to its holding, the Sallee opinion cites several appellate rulings in which courts from other states chose to interpret their own recreational land use immunity statutes in ways that restricted the scope of protection offered by those statutes –  but the Sallee opinion also cites rulings from states in which the appellate courts went the other way. And most importantly, in the end, our Court specifically declined to adopt any of the policy based holdings set out in any of these cases, instead issuing a very narrow ruling based solely on the unusual set of facts and circumstances surrounding Ms. Sallee’s injury. Thus, despite assertions to the contrary, the holding in Sallee in no way restricts or reduces a landowner’s protection under the recreational land use immunity doctrine if the landowner is allowing public entry onto his land for the primary purpose of engaging in one of the recreational activities specifically spelled out in 461C.2.

Do farmers have recreational land use immunity for guided farm tours?

After Sallee, there remains a question as to whether Iowa’s recreational land use immunity doctrine affords farmers immunity from liability for injuries that take place during a guided farm tour –  since while the Iowa Supreme Court declined to adopt the Court of Appeal’s holding that a landholder who chooses to guide a group of persons on a tour of his/her farm automatically forfeits this immunity, the Court also didn’t explicitly reject this theory. Seeking to do away with this uncertainty, the Farm Bureau has sponsored House File 605, which defines a “guided farm tour” as a “recreational activity” under 461C, and further clarifies that a landowner cannot be held liable for any injury incurred by a person participating in such a guided tour unless the injured person can prove that the injury was due to willful or malicious actions on the part of the farmer. The bill also expands the scope of a “recreational activity” to include “any activity undertaken for recreation, sport, exercise, relaxation, education or pleasure” – which pretty much encompasses all non-employment related activities, right?

What’s the problem with House File 605?

I’ve received many emails from many farmers urging me to pass HF 605 without amendment, and warning me that if we don’t pass it exactly as drafted,  children across the state will forever be deprived of the fun and educational experience of a field trip to a local farm. But I can’t vote in favor of HF 605 in its current form, and I sincerely believe that the majority of Iowans – including the majority of Iowa’s farmers – aren’t in favor of a bill that seeks to hold a farmer (or actually, the farmer’s insurance company) completely immune from liability even if a farmer leads a group of children or dependent adults directly into contact with a dangerous condition of which they could not possibly be aware, and then fails to provide them with any warning of, or protection from, the dangerous condition.

Following are just a few scenarios in which a farmer would be held immune from liability as a matter of law under HF 605:

1.         A farmer owns a dog who doesn’t like children, who has bitten a child in the past, and who generally hangs out in the barn in hot weather. The farmer knows all this, and thus typically locks the dog up when students visit the farm, but in the confusion surrounding the arrival of a large group of first graders it slips his mind – and so he marches the children into the barn to watch a cow being milked without first checking to see if the dog is in the barn and/or warning the kids to stay away from the dog. When some innocent little first grader goes to pet the nice doggy sitting next to the cow and gets her face eaten off, do we really want to tell her parents that sorry, the farmer can’t be held liable for their child’s permanent and severe disfigurement?

2.         Imagine the same facts as in the Sallee v. Stewart case, except this time it’s a kindergartener who suffers severe brain injury when the bale of hay on which he is playing (under the direction and supervision of Mr. Stewart) collapses, causing him to plummet through the hidden hay drop. Under HF 605, the fact that the child wouldn’t have fallen through the hay drop but for the fact that Mr. Stewart disguised it by putting a bale of hay on top of it and then instructed the child to jump on the bale of hay would be irrelevant – Mr. Stewart would have complete immunity, since he didn’t intend for the child to be injured.

3.         Finally, imagine a farm couple has invited a group of high school kids to tour their apple orchard and make apple cider. The farmer mistakenly sets the heating element on the cider pasteurizer way too high, and it explodes, blinding several of the teens. Again, even though it’s clear that the sole reason for the injuries is a major screw up on the part of the landowner, HF 605 would hold him immune from financial liability.

The common thread in the above examples is that the landowner has led or directed the child into contact with a dangerous condition created by the landowner of which the child could not possibly have been aware, and while I am sure that none of us would deliberately create a dangerous condition and then lead a group of children into the middle of it, mistakes do happen. And when a mistake has tragic consequences and causes permanent injury or death to a child or dependent adult, the insurance company representing the person responsible for making the mistake should be held financially liable for the mistake.

Is a compromise/resolution possible?

Absolutely! While legislating away any and all responsibility for our children’s safety is an unacceptable public policy, farmers who allow student groups the opportunity to visit a working farm provide a wonderful service to Iowa’s children, and in order to encourage farmers to continue to provide this service it’s appropriate to shield them from liability for injuries due to circumstances outside of their control (e.g., a child is bitten by a pig after ignoring the farmer’s warning not to pet said pig). To that end, legislators from both parties have been working together to pass a bill that will clarify a landowner’s rights and responsibilities with regards to guided farm tours, and clear up any confusion generated by the Sallee ruling and the (over) reaction to it. Like most compromises, I don’t anticipate that it will make everyone (or even anyone) particularly happy, but it should provide all relevant parties with adequate guidance and protection.

In the meantime, please don’t hesitate to contact me if you have questions, comments, or suggestions about any of this – it’s a complicated issue and I certainly welcome any and all input!

About Representative Mary Wolfe

Part time attorney; full time State Representative for Iowa House District 98 (East Clinton County)
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