Written by Attorney Judon Fambrough, Real Estate Center at Texas A&M University
Permitting hunters and recreational guests on your property involves personal interaction. Personal interaction generally escalates into person problems. This fact was borne out in a recent statement by a landowner. “I don’t mind the hunting as much as I do the hunters.”
One way to avoid personal, as well as legal, conflicts is to address potential problems in a written agreement such as a hunting lease or waiver. Sure, all articles tell you to contact an attorney, but you were hoping to avoid that conversation by reading this article. Right?
Well, here’s the good news. Instead of your having to go to an attorney, the attorney has come to you with the publication entitled “The Texas Deer Lease” available at no cost from the Real Estate Center at Texas A&M University.
The publication divides the management issue into two parts. The first lists items that should be addressed, either orally or in writing, in a hunting lease. These include such things as the game that can be taken, the number of hunters and guests allowed, the use of vehicles and facilities on the premises, etc. The section provides a checklist for the essential provisions a lease should address. Obviously, not all the suggestions apply to all leases.
The second part of the publication addresses landowner liability for those who enter the property followed by how to limit or avoid liability to the extent permitted by law. This section sets forth the common law rules (or rules from the case law) regarding landowner liability. It then reveals how Texas legislators changed the rules for specific situations. This is good news for landowners.
According to the case law, the duty landowners owe for the safety of visitors depends on whether the visitors are paying to enter. For fee-paying hunters and guests, landowners must warn or make safe all the dangerous conditions the landowners know about or a reasonable inspection would reveal. Sometimes the law recites the rule as what the landowners know or should have known. The longer a dangerous condition exists on the premises, the more prone the courts are to find landowners should have known about it.
If the visitors are not paying to be on the property but have a right to be there such as social guests, the law requires the landowners to warn or make safe all the dangerous conditions they know about. There is no duty to inspect. They are not liable for what they should have known or discovered.
Both fee-paying and non-paying visitors have a duty to be on the lookout for dangerous conditions on the property. If injured, Texas courts use comparative negligence to determine the landowners’ monetary liability. The judge or the jury determines the degree of negligence the visitors were responsible in failing to be on the lookout compared to the degree the landowners were responsible for failing to warn or make the condition safe.
If a visitor suffers $10,000 of damages from an injury, and the judge or jury determines the visitor was 25 percent responsible for failing to be on the lookout, and the landowners were 75 percent responsible for failing to warn or make safe, the recovery would be $7,500. Recovery is reduced to the extent the visitor contributed to his or her injury. If the visitor is more than 50 percent responsible, there is no recovery.
If a trespasser is injured on the premises, landowners are liable only when they cause the injury intentionally, maliciously or through gross negligence. That is an important fact to remember because Texas legislators added Chapter 75 to the Texas Civil Practices and Remedies Code (CPRC). This statute provides that if a person enters the property for recreational purposes as defined by the statute, whether or not they are paying to do so, the landowner owes that person no greater duty than is owed a trespasser. This is an example of where the statute changed the common law in a particular situation for the landowners’ benefit.
The good news for landowners is that, for the most part, they automatically quality for protection under Chapter 75. The statute contains three requirements.
The person entering the property must do so for recreational purposes. The statute lists such things as hunting, fishing, boating, swimming, camping, picnicking, or any other activity associated with enjoying nature and the outdoors as being recreational.
The recreational activity must occur on agriculture land. This is any property suitable for (a) raising plants for human or animal consumption, (b) growing trees commercially or for personal use, or (c) keeping domestic or native farm or ranch animals for use or profit.
The landowner’s total annual charges for all his or her guests, if any, must be less than 20 times the amount of the property taxes imposed on the premises for the previous calendar year. If they charge more, landowners must carry minimum amounts of liability insurance to continue coverage. These amounts may be found in Section 75.004 of the CPRC.
But remember, Chapter 75, known as the Recreational Guest Statute, protects landowners when their negligent conduct is responsible for injuring visitors. It does not protect them if the visitors are injured by their intentional, malicious or grossly negligent conduct.
Another way for landowners to protect themselves from liability is to secure waivers (save-and-hold harmless agreements) from those entering the property. Again, both the common law and statutory law address the use of waivers.
According to Texas case law, not all waivers are enforceable. Waivers must meet five requirements.
- They must be secured between parties with equal bargaining power. For this reason, waivers from minors or from the minor’s parents are unenforceable.
- Consideration must be exchanged. This does not necessarily mean money. Giving the hunter or guest the right to enter is sufficient in exchange for the signing the waiver.
- The waiver must state that the person signing the document releases (will not sue) the landowner if he or she is injured because the landowner’s negligence. The word negligence must be included.
- The waiver agreement must be conspicuously placed in the document.
- The placement must give fair notice of the provision to the person who signs. It cannot be buried in the fine print. To insure compliance, the waivers should be placed in a properly labeled, separate document and signed by the visitors.
The common-law rules regarding waivers were changed, in part, by statute effective June 19, 2015. Texas legislators added Chapter 75A to the CPRC. It is known as the Agritourism Statute. It parallels Chapter 75 to some degree.
The new statute defines agritourism as any activity conducted on agricultural land for educational or recreational purposes without regard to compensation. The definition of agricultural land is the same as Chapter 75 except the raising of trees is excluded. The definition of recreational purposes is identical. The term educational purposes is not defined. The statute provides that displaying exotic animals to the public on agricultural land is covered, indicating that this may be an educational activity.
Similarly, the new statute limits the landowners’ protection to injuries caused by their negligence. It does not cover injuries caused by the landowners’ intentional, malicious or grossly negligent conduct.
The new statute does not extend automatic coverage, though. Landowners gain protection one of two ways.
First, landowners may post and maintain sign(s) in a clearly visible location on or near any premises where an agritourism activity occurs. The sign must read as follows: “WARNING. UNDER TEXAS LAW (CHAPTER 75A, CIVIL PRACTICE AND REMEDIES CODE), AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR RESULTING FROM AN AGRITOURISM ACTIVITY.”
Second, the landowner may obtain a written, signed “Agreement and Warning Statement” from the entrant which resembles a waiver agreement. The agreement must contain the following language: “I UNDERSTAND AND ACKNOWLEDGE THAT AN AGRITOURISM ENTITY IS NOT LIABLE FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AGRITOURISM ACTIVITIES. I UNDERSTAND THAT I HAVE ACCEPTED ALL RISK OF INJURY, DEATH, PROPERTY DAMAGE AND OTHER LOSS THAT MAY RESULT FROM THE AGWRITOURISM ACTIVITIES.”
What is unique about the Agreement and Warning Statement is that it is valid and enforceable for a minor when signed by the minor’s parent or parents, managing conservator or guardian. However, the document must be signed before the person enters the property. No consideration is required, but the document must be printed in no less than ten-point bold type.
Without going into any details, Texas case law allows landowners to get an enforceable assumption-of-the-risk agreement from visitors that protects landowners from their grossly negligent conduct. Many landowners combine an assumption-of-risk agreement with the waiver form. The requirements for obtaining an enforceable assumption-of-the-risk agreement are discussed in the Texas Deer Lease publication. Download it at www.recenter.tamu.edu. Click on “Research Library” under the Research tab.
The publication contains a sample waiver and an assumption-of-the-risk forms. The publication provides more details regarding the subject matter. (Click here to download “The Texas Deer Lease“.)
This article appears in the fall 2016 issue of TEXAS LAND magazine. Visit www.landmagazines.com to read more and subscribe to future issues of both LAND magazine and TEXAS LAND magazine.