The Straight Facts about Landowner Liability

The leader of a boy scout troup calls and asks if his scouts can spend the weekend fishing and camping on your property.

You are considering leasing your ranch to hunters for the first time.

You want to invite a biology professor from the local college to check your trees for oak wilt.

You are considering charging mountain bikers and bird watchers a daily fee to use your property during the summer.

You want to join the Texas Parks and Wildlife Department's public hunting lease program.

You find evidence of trespass on property you own near a shopping center, a popular hangout for local teenagers.

You invite several friends to swim in the creek that runs through your farm.

Suppose an accident happens. What is your liability as a landowner? First, let us consider the law as it relates to public access to private land.

Landowners everywhere are interested in their liability as property owners. Thankfully, the past few sessions of the Texas Legislature have done much to assuage landowners' fears and limit the potential for damaging lawsuits. Common law recognizes four categories of individuals entering private land; invitees, licensees, trespassers and children under the attractive nuisance doctrine.

Invitees have an expressed or implied invitation to enter a property. Invitees include business guests such as customers to a restaurant or fee paying hunters. Landowners have the highest legal duty to invitees; they must repair or warn invitees of known dangerous conditions or dangers that would be revealed after a reasonable inspection. However, if invitees are more than 50 percent responsible for causing their own injuries, Texas law negates any landowner responsibility. Dangerous conditions could be anything from a flood prone low water crossing to an open well or mine shaft.

Licensees have expressed or implied permission to enter property, but not for the landowner's financial gain. Social guests fit the category of licensees and landowners have a duty to warn guests or make safe all known dangerous conditions. Landowners are not obligated to do regular inspections for social guests.

Trespassers have neither an invitation nor permission to enter property. Landowners are not bound to issue warnings, inspect their property or repair dangerous conditions for trespassers. However, landowners do not have the right to intentionally injure trespassers, except to protect themselves or their property.

Landowners whose property is near a school or other places where children are likely to trespass have additional considerations. Under the attractive nuisance doctrine, landowners must keep their property safe in these areas. Attractive nuisances can be related to the property's proximity to a place children use, or a feature of the property that is attractive to children, such as a cave, a swimming pool or stock pond.

In Texas a fifth category exists, thanks to the Texas Legislature. The recreational guest category was added to Texas law in 1989 (Chapter 75, Texas Civil Practices and Remedies Code). A recreational guest is anyone that a landowner gives permission to use his or her property for recreation, including fee paying hunters, school children, mountain bikers or bird watchers. Landowners owe no greater care to a recreational guest than they would a trespasser, provided he or she does not earn more than two times his or her property tax bill from recreational fees (this was changed to four times for landowners with agricultural exemptions beginning September 1, 1997).

In 1995, the Texas Legislature capped the amount a recreational guest can recover from injuries sustained on private property, regardless of legal classification and providing the landowner does not earn more than the allowed amount (again, two times property taxes or four times property taxes for landowners with agricultural exemptions beginning Sept 1, 1997). In addition, the law requires that the landowner have liability insurance coverage equal to the set caps. The caps are $500,000 for each person, $1 million for each single incident of injury or death and $100,000 for each single incident of damage or destruction to property. In the event of a lawsuit, the insurance company would pay up to the cap limits depending on the courts decision, but the landowner pays nothing.

As of September 1, 1997, landowners have even more protection. House Bill 2664 (Section 75.001(3), Civil Practices and Remedies Code), passed by the 75th Texas Legislature, put specific language into the law limiting agricultural landowner liability. Landowners who invite or give permission to recreational guests to use their property do not assure that the property is safe or owe the person a greater degree of protection than a trespasser. The law also limits agricultural landowners' liability to $1 million total for each incident, including property damage. Again, this $1 million would be paid by the insurance company, not the landowner.

Landowners can also use waivers, or legal documents signed by guests, which release the landowner from liability. Waivers must meet certain criteria to be valid; before using a waiver, landowners should consult with an attorney.

For information about landowner liability insurance contact your local insurance agent. The Texas Wildlife Association (TWA), a nonprofit wildlife and property rights advocacy group, can answer more questions about landowner liability. TWA is affiliated with the Independent Insurance Company in San Antonio at (210) 821-5080.

Now let's look at our scenarios:

The leader of a boy scout troup calls and asks if his scouts can spend the weekend fishing and camping on your property. In this case, the boy scouts would be recreational guests and the landowner's liability would be covered by the required insurance in case of an accident.

You are considering leasing your ranch to hunters for the first time. Depending on the total amount earned from hunting leases, hunters could be either recreational guests or invitees. If the property has an agricultural exemption and the landowner only earns four times (two times if the property is not agriculturally exempt) his or her property tax, accidents would be covered by the required liability insurance. If the landowner earns more than the allowed amount, he or she would be required to warn of dangerous conditions and regularly inspect the property. The landowner may also consider using liability waivers.

You want to invite a biology professor from the local college to check your trees for oak wilt. In this case, the professor would be a licensee and the landowner would be required to warn the professor of any known dangers. In the event of a lawsuit, the legal liability limits would apply, providing the landowner has the proper insurance coverage.

You are considering charging mountain bikers and bird watchers a daily fee to use your property during the summer. Same situation as the hunting lease; landowners should pay attention to their earnings from these activities, have the proper insurance coverage and consider using liability waivers.

You want to join the Texas Parks and Wildlife Department's public hunting lease program. When a landowner signs up with the Parks and Wildlife public hunting program, the Department takes on all liability for hunters with the proper permit.

You find evidence of trespass on property you own near a shopping center, a popular hangout for local teenagers. Because the law recognizes that children have an inability to perceive dangerous conditions, the landowner in this situation is required to keep his or her property safe.

You invite several friends to swim in the creek that runs through your farm. In this situation your friends are licensees and you are responsible for warning them of any known dangerous conditions. In the event of a lawsuit, the legal liability limits would apply, providing the landowner has the proper insurance coverage.