Landowner liability - are you protected?
By Nancy Jorgensen
Farmers' No. 1 asset carries with it a range of liability. Understand the law and take litility-limiting precatutions to protect your investment.
Landowners face liability exposure in a number of areas. You must comply with regulations on water, air and ground pollution and endangered species. If you hire workers, your liability extends to their injuries or deaths and to unfair labor practices. You risk prosecution for harming historic sites such as cemeteries. Special rules apply to equestrian and pick-your-own operations. You also face liability when a car hits stray livestock or when your machinery is involved in an accident on a public road.
In this article, we’ll focus on what you can do to limit risk relating to trespassers as well as guests you invite onto your property. |
As a landowner, you face liability risk from all sides. But take heart—you may be more protected than you realize. In recent decades, all 50 states have enacted laws limiting landowner liability. Missouri adopted such a law in 1983.
According to a 2002 article in the Journal of Soil and Water Conservation titled Rural Landowner Liability for Recreational Injuries, “The myth and perception of landowner liability appears to be greater than the actual liability risks. State recreation-use statutes provide significant liability protection for landowners.”
Still, Stephen Matthews, professor at the Agricultural Law Center at the University of Missouri, advises that landowners take steps to protect themselves.
“Probably only insurance companies based upon claims can accurately address what landowners should be most concerned about, yet few seem willing to share this data,” Matthews said. Here’s a list of his top concerns:
• ATVs: Injuries are all too frequent to persons who have been given permission to ride all-terrain vehicles on the land.
• Hunters: Landowners or tenants face major potential liability when they allow more than one group to hunt at the same time.
• Water: Landowners with ponds or other waterways face risk of being sued if trespassing children drown or get injured while swimming or playing in the water, or if they fall through ice covering ponds.
We’ll learn more about children in a moment. But first, let’s ask a couple of questions about the first examples that can help determine your potential for liability. Did you invite the people onto your land, or did they trespass? You owe trespassers fewer duties. Did you charge guests a fee? If so, you have more duties under the law.
Judon Fambrough is an attorney and senior lecturer at the Real Estate Center of Texas A&M University. “According to case law, a landowner’s liability, or responsibility, for anyone entering the property depends on the legal classification of the person at the time of the injury,” he said. While state laws differ, most rely on these classifications:
• Invitees, including fee-paying hunters. You must protect them by keeping your property safe and warning them of dangerous conditions that a reasonable inspection would reveal.
• Licensees, including nonpaying hunters with permission. You have a duty to warn them of known dangerous conditions or make the place safe, but no inspection is required.
• Trespassers, including hunters not given permission. You owe trespassers little legal duty.
• Trespassing children unaccompanied by an adult. You have greater responsibility to children.
Posting your land helps
Posting trees and gates along your property lines with no-trespassing signs can help ensure against liability. In Missouri, Matthews urges landowners to take advantage of a state law that makes it even easier—you can post your land with purple-paint marks (see sidebar, “Take these steps”).
Take these steps to help prevent liability 1. Inspect your property closely and often for hazards. Eliminate obvious hazards such as sharp-edged equipment and deteriorated buildings. Fill in old wells. Fence off and post warning signs on hazards that can’t be eliminated, such as a pond or rock quarry. When guests arrive, secure ill-tempered animals. Provide fee-paying guests with a list of hazards and ask them to sign a paper saying they have reviewed the warnings.
2. Post no-trespassing signs at gates and along fence lines. In Missouri, state law allows you to spray purple paint on trees and fence posts to indicate that you don’t allow trespassers—this saves you from maintaining signs, which can be vandalized. The marks must be readily visible, no more than 100 feet apart. Draw each as a vertical line at least eight inches in length, with the bottom at least 3 feet and no higher than 5 feet from the ground.
3. When confronting trespassers, calmly ask them to leave and then call local law enforcement. Avoid brandishing a firearm or other threatening behavior. Keep a record of who trespassed when, and what happened.
4. Join organizations of landowners, such as farm or forest groups. State organizations often keep members informed on liability issues, and some provide liability insurance. The Missouri Forest Products Association provides a policy for landowners; visit www.moforest.org/landowner/hunt_lease.htm.
5. Get to know guests before inviting them. Focus the burden of liability on guests by asking them to sign lease agreements or permission cards including rules of conduct. Some landowners prohibit alcohol, unsupervised children and entering certain areas. Also require guests to sign a release waiving you from liability, and be sure the waiver complies with state law.
6. Require sportsmen to purchase and provide proof of liability insurance. Hunting clubs often obtain insurance for their members, and landowners can usually be listed as insured parties. Also consider purchasing your own Owners’, Landlords’ and Tenants’ Policy.
7. If you regularly lease your land, consider forming a legal entity such as a limited liability company to protect your assets.
Stephen Matthews advises you to discuss your concerns with your insurance agent and attorney. Always check with your attorney before having a written release, waiver or disclaimer posted or signed. For general educational information, check out the Missouri Agricultural Law Center Web site, www.aglaw.missouri.edu. |
“In Missouri, you don’t have to have no-trespassing signs or purple-paint marks to bring a criminal trespass charge against a trespasser,” Matthews said. “But it helps the law enforcement officer and prosecuting attorney if there is to be an arrest and/or charges brought to court.”
By now, most Missourians know that the marks carry the same message as no-trespassing signs. “Trespassers are charged with knowing the criminal trespass law, so it will do them no good to argue they didn’t know and understand what those purple paint markings were about,” Matthews said. Several other states provide protection if you use paint marks.
As Matthews pointed out in his article, “Posting Land Against Trespassers: Signs OR Purple Paint Markings Will Work in Missouri,” Missouri statute provides for both first- and second-degree trespass. “First-degree is more serious, and conviction can result in a misdemeanor B punishable by jail up to six months and/or a fine of up to $500. First-degree trespass can occur when coming onto land fenced against intruders (arguably more than livestock fences); ignoring verbal warnings to leave; or coming onto land posted against trespass and/or with signs or purple paint marks.
“Second-degree criminal trespass in Missouri is simply being on someone’s property without permission, whether it’s posted with signs, fenced against intruders, or marked with purple paint. It results in an infraction punishable by a fine up to $200, with no jail.”
A 2005 state case, Humphrey v. Glenn, opened the possibility of landowner liability for injuries to adult trespassers, Matthews said. “But only if the trespassers constantly trespass and the landowner failed to exercise reasonable care to warn trespassers of the artificial condition and its risk of harm. The case facts had a wire cable stretched across a farm field access to a river levee, and trespassers had removed the warning signs. When an adult trespasser came down off the levee on his four-wheeler, he failed to see the cable and suffered severe injuries to his face and neck.”
When it comes to encouraging trespassers to leave your property, avoid using deadly force. Just ask them to leave. “Missouri statutes and cases do not take kindly to landowners who shoot trespassers, and it’s not a defense to say you had your land posted or that they were trespassing,” Matthews said.
He acknowledges that Missouri recently enacted the “castle doctrine,” which some interpret as authorizing the use of deadly force against intruders. But it only works against intruders to your residence or car while you are inside. “It doesn’t allow you to use deadly force against trespassing hunters, trappers, fishermen, hikers, campers and the like. Also, a landowner under Missouri statute is not allowed to use deadly force to prevent theft of livestock or machinery. Instead, call the sheriff and get license plate numbers and letters and a good description of the persons and their vehicles.” Photos would provide evidence, he added.
Invited guests also pose risks
Inviting guests, including hunters and ATVers, onto your land brings a certain level of risk. You can gain protection by asking them to sign waivers or releases, but you must still inform them of any hazards on your land. “Later in court they may argue they were uninformed as to the extent of the danger they would encounter,” Matthews said.
Matthews added that Missouri law does not allow hunters to retrieve wounded game and/or retrieve hunting dogs on another’s land without permission. “It makes no difference whether the land is posted with signs, purple-paint marks, or has no posting whatever.”
Because 93 percent of Missouri is privately owned, some landowners now charge hunters and other recreationalists fees for using their land. While Texas recently passed a law that protects landowners that charge such fees, Missouri doesn’t yet allow for such protection. “This presumably discourages fee-access hunting, so I would encourage Missouri lawmakers to look closely at the Texas statute,” Matthews said.
A growing number of landowners charge other types of guests as well for activities ranging from picnics to hayrides. Even if the event is offered at no cost for goodwill purposes, the effect on liability remains the same. “These farmers should be made aware that such non-recreational land use is not protected by statute,” Matthews said.
Missouri landowners host a lot of hunters
Missourians share a strong hunting tradition. And since the state has relatively little public land—93 percent is privately owned—many hunters stalk game on private property.
Jim Low, news services coordinator with the Missouri Department of Conservation, reported that the most recent (2006) survey by the U.S. Fish and Wildlife Service showed that Missouri ranks seventh nationwide in per-capita hunting participation.
“Missouri has a strong hunting tradition and the state’s citizens generally support hunting as a form of outdoor recreation,” said Bob Pierce, Extension wildlife specialist at the University of Missouri. To illustrate how hunting is part of the culture, he explained that some rural school districts declare a holiday during deer season so young hunters don’t have to miss class.
Many groups have been hunting at the same deer camps for generations, and Missouri is grooming more hunters for the future, Pierce added. “Missouri leads the nation in bringing the next generation of hunters into the tradition. Whereas most states have a smaller percentage of young people who hunt than adults, Missouri actually has a higher percentage. A study funded by the National Wild Turkey Federation found that Missouri counts among just three states where this is true.
Pierce also confirmed that access to private property with quality habitat for hunting is becoming more of an issue. “That is one of the reasons that the Missouri Department of Conservation has continued to purchase lands, creating conservation areas for public hunting opportunities,” he said.
In 1977, Missourians amended the state constitution, establishing a one-eighth of 1 percent sales tax for the Missouri Department of Conservation. The department has used much of the money to purchase hundreds of conservation areas. “Every county in the state has at least a few,” Low said. “Many have dozens. In all, this agency owns more than 800 areas encompassing more than 770,000 acres. National forest and other federal lands open to hunting encompass another 2 million-plus acres. Hunting pressure on some of these areas is heavy, but no one in Missouri has to worry about having places to hunt.”
Pierce recognizes that landowners often have anxiety about the liability associated with a hunting lease. “Through the development of a written lease agreement and the selection of good lessees, the risks can be reduced. One way to ensure that the group is responsible and ethical is to have the lessees form a club.” |
Take special care with children
Attractive nuisance laws protect trespassing children in many states. An attractive nuisance exists when the child is too young to appreciate a dangerous condition, or if you knew about a dangerous condition that children may frequent.
Matthews said that Missouri court decisions have effectively replaced the “Child Attractive Nuisance Doctrine” with Section 339, Restatement of Torts. “While it will depend upon the unique facts of each child injured while visiting on another’s land, I generally view the Restatement of Torts approach to lower a landowner’s potential liability for injuries to trespassing children.”
Now, he explained, it’s not dependent upon whether the child was attracted onto the land by the artificial condition that injured him. Instead, five facts must be proven before the landowner will be liable.
1. The landowner (or tenant) must know or reasonably should know that children are likely to trespass.
2. The artificial condition presents an unreasonable risk of injury to children.
3. This child because of his or her age failed to realize the danger.
4. The utility of maintaining this artificial condition was slight compared to the risk of harm to children.
5. The landowner (or tenant) failed to exercise reasonable care to eliminate the danger or otherwise to protect trespassing children.
“Seldom are landowners or tenants liable for water-related injuries to children,” Matthews said. “Children from a very early age are presumed to know and to realize the danger of swimming in water or falling through ice. The exception when liability is more likely is where there are hidden dangers in the water such as submerged sharp objects, or the child is sufficiently distracted from realizing the danger, such as by a rope swing from a tree limb over deep water.”
Matthews offered a final bit of advice about children: “Don’t allow children onto your property unless they are adequately supervised by one or more adults.”
Does state law protect you from lawsuit?
Whether the case involves guests, trespassers or children, if you are sued for liability, will Missouri’s laws protect you? The Journal of Soil and Water Conservation piece mentioned earlier tallied success rates of recreation injury lawsuits against landowners in appellate courts. At the time the article was printed, Missouri had no record of liability cases, successful or unsuccessful, against property owners.
Past history won’t protect you against future liability. But if you take preventive steps, you may be able to protect yourself as well as those entering your property.
Note: This article is for information only; it is not a substitute for legal counsel and not intended as legal advice. If you have questions, consult a licensed attorney.
Click here to respond to this article
Top of page
