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Tuesday, October 8, 2013

Keven Moore on Insurance: A heads-up on landowner liability during hunting season

With opening day of muzzleloader season for deer hunters just days away, landowner liability is a great concern, so I thought I would try to help clear the air.

 

Being a recovering deer-hunting addict who jeopardized my marriage every October and November, I can relate to the overwhelming attraction of being out in the woods for days at a time. The temptation to sneak up and trespass on an adjacent field to the property I was hunting was sometimes overpowering. But being more responsible these days, after 28-years of intense re-education with my wife/counselor, I have been reformed.

 

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(Photo courtesy of Justin Vance)

I still will get out in the woods on occasion with my good friend Mike Hall. But as a risk management and safety consultant and a homeowner, I now view deer hunting in a much different light. People with guns, bows and other forms of weapons walking onto your property in the pre-dawn hours and climbing high into trees reeks with the possibility of lawsuits. Many landowners are faced with a difficult decision, or are uneducated as to how to reduce their liability exposures.

 

My beloved deceased grandparents Bill and Ruth Moore in Grayson County owned a 366-acre farm, a prime deer-hunting oasis. When they retired they were unable to adequately manage and oversee the property. As a result, as many as 15-20 different people every year would approach them for permission to hunt on the land, while countless others would simply sneak on. It once got so bad that a colleague of my father’s, who went from Lexington to hunt, had to actually crawl out on his hands and knees because of the cross-fire coming his way. My grandfather knew it was a real issue, but was too fearful to restrict hunting, thinking somebody would burn down his barns in protest.

 

Legal liability is a major concern to landowners when considering whether or not to grant access to hunters to their property. Legal liability is also a reason many landowners have stopped allowing hunter access to their property. 

 

Homeowners with vacant land or farmland with exposures to third-party hunters should take a variety of measures to mitigate their risk exposures.

 

According to case law, a landowner’s liability (or responsibility) for anyone entering the property depends on the legal classification of the person at the time of injury. There are four categories: an invitee, a licensee, a trespasser and children under the attractive nuisance doctrine. Theoretically, a hunter could fit into any one of these categories.

 

Hunters who enter without permission are classified as trespassers. The landowner owes them no legal duty. The law does prohibit the landowner from willfully or wantonly injuring a trespasser except in self-defense or when protecting property however.

 

As a landowner, you do have a liability exposure and if you do not want any hunting activity on your land it’s important that you make your presence known on this property. A good way to do this is to look for early signs of trespassers. As trespassing hunters often scout potential land prior to hunting season, they will often leave survey tape and markers so they can remember where they were scouting. If you remove their signs, they will notice you are paying attention and do not want them on your land. You should also post numerous prominent “No Trespassing” signs on all road entrances and along any public roads your property borders.

 

To encourage landowners to make their lands more available to the public for recreational purposes, including hunting and fishing, many states explicitly shield landowners from civil liability for injuries to persons who use their land without charge — unless the landowner willfully or maliciously fails to guard against or warn of a dangerous condition, use, structure, or activity. Landowners will not be liable unless they violate this standard of care.  Many courts have interpreted this standard of care as the duty of slight care, which is lower than that of ordinary care.

 

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(Photo courtesy of Justin Vance)

Many states further extend this same protection to landowners, lessees of land, or lessees of hunting or fishing rights who give permission to another to hunt or fish on their property with or without charge. Nonpaying hunters with permission to hunt are classified as licensees and they have a duty to be on the lookout for dangerous conditions. Landowners have a legal duty to warn licensees of known dangerous conditions or to make the conditions reasonably safe, but no inspection is required.

 

Many landowners have turned to leasing their land as a steady revenue stream and to control who actually hunts on their properly, thus allowing them to police those unwelcome non-paying visitors.

 

The main benefit with this approach, besides the extra revenue,is that landowners can control access as to who hunts and by what rules they must abide. This does open landowners up for increased liability because the hunters are now invitees rather than licensee or trespassers.

 

Fee-paying hunters are classified as invitees. The duty of care owed an invitee is greater than that owed to a trespasser. Landowners have a legal duty to keep the premises safe. The landowner must give the fee-paying hunter sufficient and timely notice of hidden or dormant perils (dangerous conditions) that are personally known or that a reasonable inspection would reveal – such as wells, traps, sinkholes, cliffs, livestock, unsafe old deer-stands, etc.  
 

Injuries caused by dangerous conditions that are apparent or that could be revealed by reasonable inspection are the landowner’s responsibility. However, fee-paying hunters have responsibility for their own safety as well. The law requires them to be on the lookout for open and obvious dangerous conditions. If an injury occurs, the degree that the hunter neglected to pay attention reduces any judgment by the same proportion under the “Comparative Negligent Doctrine.” In most states no recovery is possible if the hunter is more than 50 percent responsible.

 

A landowner who leases land can also negate coverage under a homeowners and umbrella policy since a business is often excluded.

 

If you decide to lease your land to a private party, you should verify that the hunter signs a lease agreement that includes a hold harmless clause. To test your personal-lines insurance agent customer service priorities you can request a copy from them or you can go online to find an example. You should then obtain a copy of the new Lessee’s homeowner’s policy and get listed as an additional insured under that policy. If hunters want to hunt on your property then they will go this extra step on your behalf. In addition, you should take a small portion of your lease agreement revenues and purchase a general liability policy to cover your new business. To find out for sure you need to call your personal lines insurance agent.

 

A different approach may be to sign a lease agreement with a hunting club and let them manage your hunting lease, but you should verify that the club has a hunt lease insurance program holding you harmless. In addition, you should obtain a copy of the policy and get listed as an additional insured under that policy. The hunting club and the hunters should have a minimum of $1 million in liability coverage if you go this route.

 

As for me, like any good safety and risk management consultant, I just may wait to weigh in the other uncontrollable risk factors by checking the weather report before deciding if I will be crawling out of the rack this year to go freeze to death in the rain or snow before committing to a two-hour trip to Grayson County. But knowing my buddy Mike Hall, he will probably challenge my manhood, so I’ll probably be going.

 

Next week, I will list a variety of tips to further limit your liability exposure as a landowner as it relates to allowing hunters on to your land.

 

In the meantime, be safe, my friends.
 

Keven Moore is director of Risk Management Services for Roeding Insurance (www.roedinginsurance.com). He has a bachelor’s degree from University of Kentucky, a master’s from Eastern Kentucky University and 25-plus years of experience in the safety and insurance profession. He lives in Lexington with his family and works out of both the Lexington and Northern Kentucky offices. Keven can be reached at kmoore@roeding.com.

 

Click here to read more columns from Keven Moore.

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