§ 29.1-509. Duty of care and liability for damages of landowners to hunters, fishermen, sightseers, etc. -
A. For the purpose of this section:
"Fee" means any payment or payments of money to a landowner for use of the premises or in order to engage in any activity described in subsections B and C of this section, but does not include rentals or similar fees received by a landowner from governmental sources or payments received by a landowner from incidental sales of forest products to an individual for his personal use, or any action taken by another to improve the land or access to the land for the purposes set forth in subsections B and C of this section or remedying damage caused by such uses.
"Land" or "Premises" means real property, whether rural or urban, waters, boats, private ways, natural growth, trees and any building or structure which might be located on such real property, waters, boats, private ways and natural growth.
"Landowner" means the legal title holder, lessee, occupant or any other person in control of land or premises.
B. A landowner shall owe no duty of care to keep land or premises safe for entry or use by others for hunting, fishing, trapping, camping, participation in water sports, boating, hiking, rock climbing, sightseeing, hang gliding, skydiving, horseback riding, foxhunting, racing, bicycle riding or collecting, gathering, cutting or removing firewood, for any other recreational use, or for use of an easement granted to the Commonwealth or any agency thereof to permit public passage across such land for access to a public park, historic site, or other public recreational area. No landowner shall be required to give any warning of hazardous conditions or uses of, structures on, or activities on such land or premises to any person entering on the land or premises for such purposes, except as provided in subsection D.
C. Any landowner who gives permission, express or implied to another person to hunt, fish, launch and retrieve boats, swim, ride, foxhunt, trap, camp, hike, rock climb, hang glide, skydive, sightsee, engage in races, to collect, gather, cut or remove forest products upon land or premises for the personal use of such person, or for the use of an easement as set forth in subsection B does not thereby:
1. Impliedly or expressly represent that the premises are safe for such purposes; or
2. Constitute the person to whom such permission has been granted an invitee to whom a duty of care is owed; or
3. Assume responsibility for or incur liability for any intentional or negligent acts of such person or any other person, except as provided in subsection D.
D. Nothing contained in this section, except as provided in subsection E shall limit the liability of a landowner which may otherwise arise or exist by reason of his gross negligence or willful or malicious failure to guard or warn against dangerous condition, use, structure, or activity. The provisions of this section shall not limit the liability of a landowner which may otherwise arise or exist when the landowner receives a fee for use of the premises or to engage in any activity described in subsections B and C of this section. Nothing contained in this section shall relieve any sponsor or operator of any sporting event or competition including but not limited to a race or triathlon of the duty to exercise ordinary care in such events.
E. For purposes of this section, whenever any person enters into an agreement with, or grants an easement to, the Commonwealth or any agency thereof, any county, city, or town, or with any local or regional authority created by law for public park, historic site or recreational purposes, concerning the use of, or access over, his land by the public for any of the purposes enumerated in subsections B and C of this section, the government, agency, county, city, town, or authority with which the agreement is made shall hold a person harmless from all liability and be responsible for providing, or for paying the cost of, all reasonable legal services required by any person entitled to the benefit of this section as the result of a claim or suit attempting to impose liability. Any action against the Commonwealth, or any agency, thereof, for negligence arising out of a use of land covered by this section shall be subject to the provisions of the Virginia Tort Claims Act (§ 8.01-195.1 et seq.). Any provisions in a lease or other agreement which purports to waive the benefits of this section shall be invalid, and any action against any county, city, town, or local or regional authority shall be subject to the provisions of § 15.1-291, where applicable. (Code 1950, §§ 8-654.2, 29-130.2; 1962, c. 545; 1964, c. 435-@ 1977, c. ra24; 1979, c. 276; 1980, c. 560; 1982, c. 29; 1983, c. 283; 1987, c. 488; 1988, c. 191; 1989, cc. 26, 500, 505; 1990, cc. 799, 808; 1991, c. 306; 1992, c. 285; 1994, c. 544.)
The 1991 amendment inserted "or an order to engage in any activity described in subsections B and C of this section" in the paragraph defining "Fee" in subsection A, deleted "point-to-point" following "horseback riding" in the first sentence of subsection B, deleted "point-to-point" following "engage in" in the introductory language of subsection C, and in subsection D substituted "use of the premises or" for "giving another person permission to enter upon land" in the second sentence and added the last sentence.
The 1992 amendment inserted "foxhunt" in the first sentence of subsection C.
The 1994 amendment added the language beginning with "or for use of an easement granted" in the first sentence of subsection B; deleted "or" following "races" and inserted "or for the use of an easement as set forth in subsection B" in subsection C; and inserted "or grants an easement to," inserted "historic site" and inserted "or access over" in the first sentence of subsection E.
This section sets up certain prerequisites before it becomes applicable: (1) The person must come upon the land to hunt, swim, trap, camp, hike, or sightsee; (2) no consideration must have been paid by the user to the landowner. Hamilton v. United States, 371 F. Supp. 230 (E.D. Va. 1974) (decided under former § B-654.2).
Taxpayer who pays taxes is not paying a consideration for the use of land owned by the United States. Hamilton v. United States, 371 F. Supp. 230 (E.D. Va. 1974) (decided under former § 8-654.2).