The Recreational Use Statute Trap: Why Injured Tennesseans May Have No Remedy on Public Land
By Lauren Scieszinski Morse, Attorney at Law
Tennessee is full of beautiful places to hike, swim, boat, fish, camp, sightsee, and enjoy the outdoors. From state parks and lakes to trails, greenways, and public recreation areas, Tennesseans are encouraged to get outside and use public spaces.
But there is a legal trap many people do not know about until it is too late.
If you are seriously injured while using land for recreation in Tennessee, you may assume that you have a claim if the injury was caused by someone else’s negligence. You may assume that if a dangerous condition existed, and the landowner knew about it but failed to fix it or warn about it, the law would provide some path to accountability.
In many recreational injury cases, that assumption may be wrong.
Tennessee’s recreational use statute can make it extremely difficult for injured people to recover, even when the injury was caused by a dangerous condition on the property. And when the property belongs to the State of Tennessee, the law may leave an injured person with no meaningful remedy at all.
What Is the Recreational Use Statute?
Tennessee’s recreational use statute was designed to encourage landowners to make land available for recreational use. The idea is that if landowners are worried about being sued every time someone gets hurt while hiking, fishing, camping, boating, sightseeing, or engaging in other recreational activities, they may choose to close their land to the public altogether.
To prevent that, Tennessee law gives broad protection to landowners who allow their property to be used for recreation.
In plain English, the statute generally says that a landowner does not owe a duty to keep the property safe for people entering or using the land for certain recreational purposes. It also generally says the landowner does not have to warn recreational users about hazardous conditions, structures, uses, or activities on the land.
That is a significant protection. In most Tennessee personal injury cases, the injured person must prove that the defendant owed a duty of care, breached that duty, and caused an injury. But the recreational use statute can eliminate the ordinary duty of care at the very beginning of the analysis.
The Statute Covers a Broad Range of Activities
Many people hear “recreational use” and think only of remote hunting land or undeveloped wilderness. But the statute can apply much more broadly.
The law includes activities such as hunting, fishing, camping, water sports, whitewater rafting, canoeing, hiking, sightseeing, animal riding, bird watching, boating, caving, rock climbing, skiing, off-road vehicle riding, and other outdoor recreational activities.
That means the statute may come up in cases involving parks, trails, lakes, natural areas, public recreation facilities, and other properties used for outdoor activities.
The result is that a person who is injured while enjoying a recreational area may face a much higher legal burden than they expect.
Ordinary Negligence May Not Be Enough
In most personal injury cases, the injured person is trying to prove ordinary negligence. Ordinary negligence generally means that someone failed to use reasonable care under the circumstances.
For example, ordinary negligence may involve failing to repair a dangerous condition, failing to inspect property, failing to provide adequate warnings, or failing to take reasonable steps to keep people safe. But in recreational use cases, ordinary negligence often is not enough.
That is where the trap begins. The recreational use statute has exceptions. One important exception involves gross negligence, willful or wanton conduct resulting in a failure to guard or warn against a dangerous condition, use, structure, or activity.
At first glance, that sounds like there is still a path forward. An injured person may not be able to recover for ordinary negligence, but perhaps they can recover if the conduct was bad enough to qualify as gross negligence.
For private landowners, that may be true in the right case. But when the property is owned or controlled by a governmental entity, the analysis becomes much more complicated.
The Governmental Immunity Problem
Governmental entities are generally protected by immunity unless the legislature has specifically allowed them to be sued. This is different from suing a private person or business.
For local governmental entities, claims are often governed by the Tennessee Governmental Tort Liability Act. For claims against the State of Tennessee, claims are often governed by the Tennessee Claims Commission Act.
These statutes decide when the government has consented to be sued.
The problem is that Tennessee courts have held that when certain governmental immunity statutes allow claims for negligence, they mean ordinary negligence — not gross negligence or recklessness.
That creates a serious problem in recreational use cases. The recreational use statute may say ordinary negligence is not enough. The injured person must show gross negligence or worse. But the governmental immunity statutes may not allow claims for gross negligence.
So, the injured person can be stuck in the middle.
Ordinary negligence is too little. Gross negligence is too much.
And the courthouse door may be closed.
Lawson v. Hawkins County
In Lawson v. Hawkins County, the Tennessee Supreme Court addressed whether the Governmental Tort Liability Act removes immunity for gross negligence or recklessness. The Court held that the Act removes immunity only for ordinary negligence.
That case did not arise as a recreational use statute case, but its reasoning matters because it explains how Tennessee courts interpret governmental immunity. If the statute says immunity is removed for “negligent” acts, that does not necessarily include gross negligence or recklessness.
That distinction is critical.
In an ordinary case, a plaintiff may want to plead gross negligence to show how serious the misconduct was. But in a governmental immunity case, pleading gross negligence can create a different problem: the government may argue that it has not consented to be sued for that level of conduct.
Gordon v. State: The Trap in Action
The recreational use statute trap became even clearer in Gordon v. State.
In that case, the Tennessee Court of Appeals addressed a claim involving injury on state-owned property. The Claims Commission had found that the State’s conduct amounted to gross negligence. Ordinarily, that might sound like a path to recovery under the recreational use statute’s exception.
But the Court of Appeals concluded that the Claims Commission lacked jurisdiction over claims for gross negligence.
In other words, the recreational use statute shielded the State from ordinary negligence liability, while the Claims Commission Act did not provide a path for gross negligence liability.
That is the catch-22. The injured person could not recover for ordinary negligence because the recreational use statute required more. But the injured person also could not recover for gross negligence because the State had not waived immunity for that type of claim in the Claims Commission.
The result is deeply troubling: even where conduct is serious enough to be called gross negligence, an injured person may still be left without a remedy if the injury occurred on state-owned recreational property.
Why This Matters to Tennessee Families
This issue is not just a technical legal debate. Tennesseans use public land every day. Families visit state parks. Children play in recreational areas. People hike trails, visit overlooks, swim in lakes, use boat ramps, attend outdoor events, and enjoy public spaces across the state.
Most people assume that if a governmental entity knows about a dangerous condition and fails to fix it or warn the public, there will be some form of accountability if someone is seriously injured.
But the recreational use statute, combined with governmental immunity, can make accountability extremely difficult or even impossible.
This matters because public access should not mean public danger without responsibility.
The original purpose of the recreational use statute may have been reasonable: encourage landowners to open property for recreation. But when the statute is applied to public property, especially property already held for public use, the policy balance becomes much harder to justify.
The State is not a private farmer deciding whether to let neighbors fish in a pond. The State owns and maintains public spaces for public use. When those spaces contain dangerous conditions, and people are invited or encouraged to use them, there should be a meaningful path to accountability when the government’s conduct causes serious harm.
What Injured People Should Know
Anyone injured on recreational property in Tennessee should understand that these cases can be very difficult.
It is important to gather evidence quickly. Photographs of the condition, witness information, incident reports, prior complaints, maintenance records, signage, and any communications with the property owner may become critical.
It is also important to determine who owns or controls the property. The legal analysis may be very different depending on whether the land is privately owned, owned by a city or county, or owned by the State of Tennessee.
The type of activity also matters. The recreational use statute does not apply to every injury on every piece of property. But when it does apply, it can dramatically change the case.
Because Tennessee has a short statute of limitations for personal injury claims, injured people should not wait to seek legal advice. Delay can make an already difficult case even harder.
The Bigger Policy Question
The recreational use statute raises an important question for Tennessee:
Should a person who is seriously injured because of a dangerous condition on public recreational land be left with no remedy at all?
Encouraging outdoor recreation is a worthy goal. Protecting landowners who generously open private property to the public may also make sense in many situations.
But when the law protects negligent conduct, blocks ordinary negligence claims, and then also prevents gross negligence claims against the government, the result is not just protection from frivolous lawsuits. It is a legal trap.
For injured Tennesseans, that trap can mean that no matter how serious the injury, no matter how dangerous the condition, and no matter how preventable the harm, there may be no path to recovery.
That is a result most people would never expect.
And it is one Tennessee families should know about before they find themselves caught in it.
About the Author
Lauren Scieszinski Morse is a Family Law Attorney at Fox Farley Willis & Burnette. She helps individuals and families throughout East Tennessee navigate divorce, child custody, and other family law matters with compassion and practical guidance.
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