According to a study completed in 2015 by the Nevada Legislature, over 85 percent of Nevada is owned by the federal government, including 4,532,961 of the 5,178,240 acres here in Clark County. The Bureau of Land Management (BLM) is by far the largest landowner in the state, but large chunks of real estate are owned by the Forest Service, the National Park Service, the Bureau of Reclamation, the Fish and Wildlife Service, and other agencies.
In many places, public agencies have developed recreational trails for use by hikers, equestrians, and mountain bikers. When the user of a trail is injured by a condition that exists because of negligent trail maintenance, does the user have recourse against the public agency that owns and maintains the trail?
Nevada’s recreational use statute
Generally speaking, a person who makes recreational use of public land does so at his or her own risk. Under Nevada’s recreational use statute, NRS 41.510, the owner or lessee of land “owes no duty to keep the premises safe for entry or use by others for participating in any recreational activity,” including hiking, camping, riding horses, or mountain biking. This is true even if the owner gives the user express permission to use the land for recreational purposes, unless the user paid for entry. NRS 41.510(3)(a)(2). Nevada’s recreational use statute protects private landowners as well as federal agencies. Ducey v. United States, 713 F.2d 504 (9th Cir. 1983).
Willful or malicious acts can still lead to liability
The recreational use statute does not limit liability for willful or malicious acts. This might include things like failing to provide adequate warning about a particularly dangerous condition. An example of this might be a tree deliberately felled across a mountain biking trail where bikers might not see it in time to react. But it might not include a tree that falls naturally across a trail and simply hasn’t been cleaned up.
The legal test used to determine if an action was “willful or malicious” comes from Frasure v. United States, 256 F. Sup 2d 1180 (D. Nev. 2003). In Frasure the court used a three-part test to determine if a landowner willfully failed to warn against a dangerous condition. The test asks whether the landowner had (1) actual or constructive knowledge of the danger, (2) actual or constructive knowledge that injury is a probable, not merely possible, result of the danger, and (3) consciously failed to act to avoid the danger. Id. at 1193.
Talk to an attorney to explore your options
If you have been injured as a result of conditions on public lands, you may have legal options to recover compensation. GGRM has represented personal injury plaintiffs in the Las Vegas area for over 45 years. For a free attorney consultation, reach out to us today at 702-388-4476, or ask us to call you through our contacts page.