Contact: Dr. Ron Kaiser, (979) 845-5303, rkaiser@rpts.tamu.edu
COLLEGE STATION — Landowners assume less liability than many may think for recreational accidents on their land, a Texas Agricultural Experiment Station expert says.
“Our nationwide assessment of rural landowners’ liability suggests the legal threat to landowners is probably exaggerated and should not be a major concern,” said Dr. Ron Kaiser, associate professor of recreation, park and tourism sciences at Texas A&M University. “The so-called ‘liability crisis’ that has plagued efforts to increase access to private lands for recreation has been more mythical than real.”
Kaiser adds, however, that landowners should be knowledgeable regarding the liability threat in their respective states.
In Texas, that threat is minimal, said Kaiser, who is also an attorney. For landowners, that means they can readily consider establishing recreational enterprises to supplement any income from their property.
Kaiser and Dr. Brett A. Wright of George Mason University’s Center for Recreation Resources Policy conducted the assessment for the U.S. Soil Conservation Service. They found that private landowners who allow free access to their property enjoy near-absolute immunity from liability for recreational injuries based on state recreational use statutes.
Even if landowners charge a fee, they don’t automatically assume greater liability, Kaiser said.
“In fact, several states, including Texas, now allow landowners to charge a modest fee and still retain liability protection under the recreation-use statute,” he said.
Only if a non-agricultural landowner collects fees equivalent to twice the land’s annual ad valorem taxes does the owner lose statutory immunity in Texas, Kaiser said. Owners charging recreation users for use of agricultural land can charge whatever the market will bear without losing immunity, he added.
Agricultural land is defined as land suitable for use in producing food, forage and fiber crops, forestry products or domestic animals kept for profit.
Landowners allowing free access to their property have no obligation to inspect the property to discover hidden dangers, warn recreationists of hidden dangers, keep the property safe for recreationists’ use or provide assurance of safety to those users. That means these users, such as hunters, fishermen or others, will likely be responsible for any injuries or other harm suffered on private land, Kaiser said.
Kaiser suggests landowners who are considering establishing a recreation enterprise to supplement their incomes should consider incorporating safety and risk management principles in their operating plans.
Understanding the risk associated with different activities also can help minimize liability threats, he said.
For instance, less than 3 percent of court cases involving private property dealt with hunting, Kaiser and Wright found. Kaiser also said statistics indicate that hunting accidents are generally decreasing, probably because of hunter education courses.
Another 12 percent of court cases involved motorized vehicles, such as motorcycles, snowmobiles and all-terrain vehicles.
The greatest liability threat, Kaiser noted, is from water-related recreation activities, such as swimming, diving, boating, and to a lesser degree, fishing.
The two researchers also looked into case law since 1965 involving rural landowners and recreation-injury litigation. Appeals-court cases from all states that had such cases were analyzed.
In Texas, the researchers found, only three recorded cases of litigation have occurred since the recreation-use statute was passed in 1965. All three cases were against public agencies, and only one of those cases found the agency liable.
No cases against private Texas landowners were noted. Immunity from liability does not extend to willful and wanton misconduct by landowners, Kaiser stressed, and 46 of 50 states specify that owners can be held liable in cases of misconduct. In any event, all landowners should consult their homeowner’s insurance policy or their broker to determine if they are covered should an accident occur.
“If the primary use of the land is a recreation business, a commercial business policy may be necessary,” Kaiser said.
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