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In a refreshingly common-sense opinion, the Pennsylvania Supreme Court recently ruled that if an easement holder exercises sufficient control over undeveloped land to be subject to tort liability as a “possessor” of that land, the easement holder is entitled to the immunity protections afforded to “owners” under the Recreational Use of Land and Water Act (RULWA). The case in question was Stanton v. Lackawanna Energy Ltd. and Pennsylvania Power and Light Co., decided Nov. 23. By way of background, Pennsylvania Power and Light (PPL) is the holder of a 70-foot-wide permanent easement on lands – mostly undeveloped – owned by Lackawanna Energy. Under the terms of the easement, PPL is granted the right to construct and maintain electric transmission towers within the easement area, which is accessed by a service road. At Lackawanna’s request, PPL constructed a steel swing arm gate to control illegal dumping and vandalism at the property. The gate is often left open. In 1994, Jesse Stanton, a minor, entered the Lackawanna lands on his motorbike to do some recreational riding. Although he had frequently seen that gate open, on this occasion, the gate was closed, and Jesse was injured when he had an accident while trying to avoid hitting it. The Stantons sued both PPL and Lackawanna, asserting that those parties had been negligent in placing the gate, in locking it (unlike their normal practice) and in maintaining an attractive nuisance. Lackawanna, as landowner, settled the case, but PPL chose to contest, arguing it was immune from liability to the Stantons under the RULWA. The RULWA states, “[e]xcept as . . . provided in Section 6 of this act, 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.” The purpose of the RUWLA, as expressly stated in Section 1 of the act, is to “encourage owners of land to make land and water areas available to the public for recreational purposes by limiting their liability toward persons entering thereon for such purposes.” Section 6 of the act clarifies that immunity will not be provided when the owner acts in a willful or malicious manner or when the owner charges a fee of the persons who enter the lands for the recreational use. The Stantons responded that PPL was not an “owner” of the land, pointing to the language of the statute that defines “owner” simply as “the possessor of a fee interest, a tenant, lessee, occupant or person in control of the premises.” Although the terms “land” and “recreational purpose” had been interpreted in a number of cases, the meaning of “owner” as used in the act had not been meaningfully analyzed by any Pennsylvania court prior to this case. The trial court concluded that the meaning of this term was a question for the jury. PPL appealed this decision to the Superior Court, which granted the petition. At Superior Court, PPL pointed to a number of Pennsylvania cases that classify the holder of an easement as a possessor of property, and hold that such a party is held to the same duty of care as an owner. PPL further argued it was an owner under the express terms of the RULWA because it was either an occupant or party in control, both terms included in the act’s definition of “owner.” The Stantons argued that easement holders are not owners under the RULWA because such parties are not expressly enumerated in the list definition of owners. The Superior Court responded first by considering the policy objectives of the RULWA and then by referring to the “plain language of the act.” As for the policy objectives, the court noted that the Legislature hoped to encourage landowners to make their properties available for recreational use by providing them with limited tort immunity. Referring to the Restatement (Second) of Torts, the court noted that easement holders who exercise sufficient control over land may incur liability to parties injured while on their premises. In light of this fact, it would be reasonable for easement holders to consider prohibiting access to their land in order to minimize their risk, which runs counter to the objectives of the RULWA. Looking to the plain language of the statute, the court had no difficulty concluding that PPL would be considered an owner as an “occupant or person in control of the premises.” Given the policy considerations and reasonable extension of the terms of the statute, the court concluded that if an easement holder exercises sufficient control to subject it to tort liability, it should be considered an owner, entitled to the benefits of RULWA with respect to tort liability. On appeal to the Supreme Court, the Stantons reiterated their positions that the RULWA should be strictly interpreted and that easement holders are not expressly included in the definition of “owner” and therefore not entitled to the protections of RULWA. The Stantons also cited cases from Maryland and California that they felt supported their position, but which the court found inapposite. PPL responded that its “possessory interest” in the easement area made it an “owner,” and the terms “occupant” and “person in control,” as found in the RULWA, should be read in light of common dictionary definitions; under such readings, PPL argued, its interests rise to the level of an owner. PPL reminded the court that it had previously found easement holders to be liable in tort precisely because such parties exercise a level of control over a property which imposes upon them a duty of care. PPL also argued that the policy objectives of the act argue for extending immunity to easement holders that might otherwise feel compelled to restrict access to the lands they control. Like the Superior Court, the Supreme Court commenced its analysis with a review of the statutory intent of the legislators who enacted the RULWA. The General Assembly, it noted, made clear that it intended to encourage landowners to make their land and water areas available for public use by limiting their liability toward such persons. Under the act, the landowner owes no duty of care to recreational users, provided the owners permit such use free of charge (unless the owner acts in a willful or malicious manner). The act is intended to protect parties who would otherwise bear risk, should they open their lands to recreational uses. The court also expressed its conclusion that aside from providing incentives to landowners to open their properties, the act memorializes a recognition of “the impracticality of keeping large tracts of largely undeveloped land safe for public use.” The court cited the Statutory Construction Act as mandating an interpretation of the statute according to common and approved usage, while being careful not to extend the RULWA beyond the legislative intent. The court agreed with the Stantons that PPL did not have a fee interest in the Lackawanna lands. But looking to other terms in the RULWA definition of owner, the court held that PPL arguably did have an interest that could be characterized as an “occupant,” based upon the Black’s Law Dictionary definition of that term: “one who has possesory rights in, or control over, certain property or premises.” PPL, it noted, had improvements on the property, regularly maintained the property, had the ability to restrict access by closing the gate, and could, under the easement document, trim the trees as it desired. PPL’s “ability to manage and regulate its use” supported its position as “occupant” and therefore, under the RULWA, as “owner.” The court found additional support for this interpretation in the Restatement (Second) of Torts, which defines a possessor of land as “a person who is in occupation of the land with intent to control it.” It appears from all indications that PPL was not only in possession, but had the exclusive right to possess the areas in question, subject to the terms and conditions of the easement, and consequently, this reading seems eminently appropriate. The Supreme Court has held on numerous occasions that an easement holder may find itself subject to the same tort liabilities which may be imposed upon any other possessor of a property. Where an easement holder is exposed to such liability, it is likely to attempt to control its risk by restricting access to the areas which it controls. Given the policy considerations under the RULWA, the court concluded it is only logical that a party with sufficient control over land to be subjected to liability should also be deemed entitled to the protections of the RULWA when opening up such lands to the public for recreational use. Any other result would run contrary to the intentions of the Legislature in enacting the RULWA and should therefore be rejected. Based on the court’s determination that PPL was an “occupant or person in control of the premises” and, therefore, an owner under the RULWA, and consistent with the intents of that act, PPL was found to be entitled to the tort immunity protections it affords. PPL was granted summary judgment in the matter, and the rights of easement holders on undeveloped land were clarified in the process. MARTIN DOYLE and DAVID FELDER are members of Saul Ewing’s real estate department in the firm’s Philadelphia office. Both have worked on a number of major real estate transactions and have been involved in all aspects of real estate development, sales, finance and leasing. Doyle received a law degree, cum laude, from the University of Pennsylvania Law School. Felder received his J.D. degree, cum laude, from Harvard Law School.

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