Texas Landowner Liability and Hunting
There is no doubt hunting and fishing is big business in Texas, to the tune of over $4 billion dollars annually. But when it comes to recreational access, especially hunting access on private land in Texas, the same question seems to consistently come up. What about liability?
Interestingly, according to a 2002 article by Wright, Kaiser, and Nicholls titled “Rural Landowner Liability for Recreational Injuries: Myths, Perceptions, and Realities” the article documents only 15 cases involving hunting accidents nationally. Here in Texas, there were only two cases against private landowners.
Over the years, the state of Texas has passed a number of statutes to provide additional liability protection to landowners. More recently, as Tiffany Dowell, author of the Texas Agriculture Law Blog points out, a 2015 statute codified as Texas Civil Practice and Remedies Code Chapter 75A offers important protections of which landowners need to be aware.
According to Ms. Dowell, “the statue provides that an “agritourism entity” is not liable to any person for injury or damages to an “agritourism participant” if: (1) the required signage is posted; or (2) a written agreement containing required language is obtained.” She goes on to explain in further detail and answer questions regarding the Act itself which I encourage any interested individual to read.
One of the best documents available regarding landowner liability in a hunting lease situation was authored by Judon Fambrough, a senior lecturer and attorney at Texas A&M Real Estate Center. Titled the “Texas Deer Lease,” Mr. Fambrough does a great job outlining a well-thought-out lease document dealing with liability, and discusses the new “agritourism” statute eluded to earlier.
In addition, Mr. Fambrough authored the short document “Landowner Liability for Hunters,” which I have simplified below. Once again I encourage anyone interested to read his full document on the subject.
Four categories of persons on a property:
- Children under the attractive nuisance doctrine
How hunters fit into those categories:
- Fee-paying hunters are classified as “”
- Nonpaying hunters with permission to hunt are classified as “”
- Hunters who enter without permission are classified as “”
- Unaccompanied, trespassing children are protected by the attractive nuisance doctrine.
According to statutory law, primarily Chapter 75 of the Texas Civil Practices and Remedies Code (TCPRC), landowners owe a recreational guest (hunter/licensee) no greater degree of care than is owed a trespasser if there is no charge for entry.
If there is a charge, the landowners owe the hunter no greater duty than is owed a trespasser until the total charges during the year exceed 20 times the amount of the ad valorem taxed imposed on the premises for the previous year.
If the fee limit is exceeded, then the landowner faces the degree of care owed to either an invitee or licensee, whichever the case may be. The amount charged has no effect on the attractive nuisance doctrine.
Trespassers – the landowner owes them no legal duty. The law prohibits the landowner from willfully or wantonly injuring a trespasser except in self-defense or when protecting property. The landowner is liable for gross negligence or for acts done with malicious intent or in bad faith.
Landowners responsibilities for a fee-paying hunter (invitee):
- Legal duty to keep the premises safe for the invitee’s protection.
- Give the fee-paying hunter adequate and timely notice of concealed or latent perils that are personally known or that a reasonable inspection would reveal.
- Injuries caused by dangerous conditions that are apparent or that could be revealed by reasonable inspection are the landowner’s responsibility.
Landowners responsibility for non-paying hunter (licensee):
- A legal duty to warn licensees of known dangerous conditions or to make the conditions reasonably safe.
- No inspection is required.
Fee-paying hunters and non-paying hunters responsibility:
- Law requires them to be on the lookout for open and obvious dangerous conditions.