Landowner Liability: A Real but Manageable Threat

STORY BY LORIE A. WOODWARD

LANDOWNER LIABILITY IS A REAL, BUT MANAGEABLE THREAT FOR TEXAS LANDOWNERS. “When it comes to landowner liability, unlike many other legal issues, astute landowners can play offense instead of defense,” said Attorney Tiffany Dowell Lashmet, who is an Associate Professor and Extension Specialist in Agricultural Law with Texas A&M Agrilife Extension in Amarillo. “While there are no silver bullets to guarantee that landowners will never face a lawsuit or be liable for anything that happens on their property, landowners can take some definitive steps to help limit liability and prevent negative outcomes.”

The Threat

The threat of liability exists anytime landowners open their property to anyone, including family and friends.

“Even though no one thinks it will happen to them, family members sue other family members and friends sue friends,” Dowell Lashmet said. “The best strategy is to assume that everyone is a potential plaintiff and prepare accordingly.”

Because land is a valuable asset generally protected by insurance, landowners can be a tempting target for plaintiffs’ attorneys, she said.

“There’s no way to predict what might happen if someone, regardless of relationship, is seriously injured or killed on landowners’ property,” Dowell Lashmet said. “Landowners can find themselves facing huge potential damages if they’ve not taken steps to protect themselves and their operations.”

The Prevention

Through the years, Dowell Lashmet has identified five actions that collectively help protect landowners and their operations.

Carry Liability Insurance Liability insurance is the first line of defense. In Dowell Lashmet’s opinion, every landowner in Texas should have a policy covering their property for two reasons.

“Obviously, if someone gets injured on your property and that injury is within the scope of the policy coverage, the insurance company will pay to the limits of the policy,” Dowell Lashmet said. “In addition, the insurance company will provide a defense at its expense on behalf of the landowner if a lawsuit is filed.”

To ensure they have adequate and appropriate coverage, landowners should talk through the details of their operations with their insurance agents.

“The amount of risk varies from operation to operation, so the amount of coverage varies from operation to operation,” Dowell Lashmet said.

For instance, a ranch that is solely used for family recreation likely will require less coverage than a ranch that has a commercial hunting operation or an agritourism business.

Written warnings help avoid a ‘he-said, she-said’ situation if a lawsuit is ever brought to court.”

—TIFFANY DOWELL LASHMET

Identify Dangerous Conditions on the Land and Either Provide Warnings or Make Them Safe Every state has slightly different laws relating to when a landowner can be held liable for injuries. Most states, including Texas, group people into different categories and assign a certain level of landowner duty for each category.

“Generally speaking, though, landowners can protect themselves from liability by identifying dangers on the properties and making them safe or by warning guests that the dangers exist,” Dowell Lashmet said.

The classic example of a hidden danger is an abandoned water well. In this case, the landowner could remove the danger by filling it in, permanently capping, fencing it in or any other means of making it inaccessible. The landowner could also post a warning sign, provide an oral warning to anyone entering the property, provide the location and warning as part of a lease agreement contract for hunting, grazing or any other lease purpose, or employ a combination of any or all of the above methods.

“For obvious reasons, written warnings help avoid a ‘he-said, she-said’ situation if a lawsuit is ever brought to court,” Dowell Lashmet said.

When it comes to injuries caused by wildlife including insects, spiders and snakes, landowners generally are protected by a doctrine known as ferae naturae, which says that landowners owe no duty to guests on the premises for wildlife the landowners neither introduced to the premises nor reduced them to their control. The notable exception to this is if a wild animal injures someone inside an artificial structure such as a guest house, a barn or a hunting blind.

A recent case involving a brown recluse spider bite incurred by a part-time caretaker at a Hill Country bed-and-breakfast made its way to the Texas Supreme Court. The state’s highest court eventually ruled in favor of the property owner maintaining that the intermittent presence of spiders in the dwelling did not give him knowledge of unreasonable risk or harm. In this case, the long-time caretaker, who had periodically been inside the structure, had the same knowledge of the presence of the spider as the owner, so the owner owed no duty to the caretaker for something he already knew.

“While the courts eventually ruled in favor of the landowner, the case proved it is prudent for a landowner to make a concerted effort to identify potential hidden dangers, especially in artificial structures, and warn guests about them,” Dowell Lashmet said.

Obtain a Written Liability Release from Anyone Coming on the Property Liability releases also known as liability waivers are documents signed by guests agreeing that they will not hold a landowner liable for injuries that occur on the property.

“Generally, in Texas, the courts uphold these waivers if the documents have been properly drafted and the injured party is not a minor,” said Dowell Lashmet, noting there are still some questions about whether these waivers are enforceable against injured minors.

Private Lands Summit 2020

For the past seven years, the Texas Wildlife Association has hosted the Private Lands Summit as the kick-off for its annual convention, Texas WildLife.

“The Private Lands Summit is designed to give landowners a chance to deep dive into a significant issue over the course of a day-long seminar from the perspectives of recognized experts and experienced practitioners,” said Iliana Pena, TWA’s Director for Conservation Programs.

This year the summit, Law of the Land: A Legal Primer for Texas Land Owners, is focused on issues such as landowner liability, renewable energy leases, and oil and gas law that impact landownership in the Lone Star State.

At the time of publication, plans for this year’s summit were pending as TWA staff monitors evolving public health recommendations. Please check “Events” at Texas-Wildlife.org for the most up-to-date information including registration details.

In the meantime, mark your calendars (tentatively) for:

Law of the Land: A Legal Primer for Texas Land Owners Thursday, July 9

WildLife 2020 Texas Wildlife Association’s Annual Convention Friday, July 10 – Sunday, July 12

JW Marriott San Antonio Hill Country Resort & Spa 23808 Resort Parkway San Antonio, Texas

Because the wording of the document can be crucial and subject to legal scrutiny, Dowell Lashmet recommends having an attorney prepare the waiver.

“Spending the money up front will be a wise investment if it helps a landowner avoid a lawsuit,” she said.

In Texas, the waivers must be conspicuous and comply with the express negligence doctrine.

“Essentially this means the language of the waiver can’t be hidden in the small print of a larger document like a hunting lease,” Dowell Lashmet said. “And it must contain specific language indicating the signer releases the landowner from all claims of negligence or gross negligence arising from being on the property.”

Consider Using a Limited Liability Business Entity Structure If formed and handled properly, certain types of business structures, such as a limited liability company or a corporation, can limit liability for a landowner if an injury occurs on property owned by the entity.

“The proper business structure can help protect personal assets,” Dowell Lashmet said.

For example, if someone gets injured on a property owned by an LLC of which Bob is a member, Bob would not be personally liable for the injuries. Conversely, if Bob owned the land in his name, his personal assets could be subject to liability if an injury were to occur.

Because there are many different considerations that go into choosing an appropriate business structure, Dowell Lashmet suggested landowners consult with an accountant as well as an attorney.

Ensure That All Limited Liability Statutes Apply to the Operation Three statutes limit landowner liability in Texas: the Texas Recreational Use Statute, the Texas Agritourism Act and the Texas Farm Animal Liability Act. Each one provides protection for different types of operations under different circumstances and require landowners to take different steps.

“All landowners should invest the time and due diligence to study what is required for their operations to be protected under these laws,” Dowell Lashmet said. “Through these laws, the Texas Legislature provided free liability protection to landowners who take the appropriate steps.” °

For more information on landowner liability—and a myriad of other issues—check out these additional resources from Tiffany Dowell Lashmet.

Texas Agriculture Law Weekly Blog | AgriLife.org/texasaglaw

Ag Law in the Field Podcast | AgLaw.libsyn.com

Owning Your Piece of Texas Handbook |AgriLifeCDN.tamu.edu/texasaglaw/files/2019/05/Owning-Your-Piece-of-Texas.pdf