Keven Moore: Landowner liability during deer hunting season — be aware of the risks; be insured

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With opening day of rifle season for deer hunters’ just days away, landowner liability is a great concern to many and can be a bit confusing, so I thought I would try and help clear the air.

Being a recovering deer-hunting addict in the1 980’s and 1990’s, that often times jeopardized my marriage every October and November, I can relate to the overwhelming pull and attraction of being out in the woods for days at a time. I must admit that back then the temptation to trespass on a field adjacent to the property I was hunting was sometimes overpowering, because buck-fever had set in.

But being more responsible these days, with a couple of decades of intense re-education training with my wife/counselor, I have since been reformed.

When I can find the time I still will get out in the woods but as a risk management and safety professional and a homeowner I now view deer-hunting in a much different light.

People with guns, bows and other forms of weaponry walking onto your property in the pre-dawn hours and climbing high into trees just reeks with the possibility of lawsuit. Many landowners are faced with a very difficult decision, or are uneducated as to how to reduce their liability exposures when it comes to allowing hunters on to your property.

My beloved deceased grandparents Bill and Ruth Moore in Grayson County use to own and farm 350 acres of prime deer-hunting oasis. While living out their retirement they were unable to adequately manage and oversee the property like they once did. As a result, as many as 15-20 different people every year would approach them for permission to hunt on their land, while another 15-20 would simply sneak on the back on the back part of his farm without even asking.

It once got so bad that a friend of my father’s who had asked to hunt, had to actually crawl out on his hands and knees because of the cross-fire that was coming his way. It became a real issue and my grandfather knew it, but was too fearful to restrict hunting, for the fright that somebody would get angry and burn down his barns in protested.

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.

 

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 from the person leasing the hunting rights and request a copy of his or her 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 could also take a small portion of your lease agreement revenues and purchase a general liability policy to cover your new business endeavor.
 
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 myself this year.

Be Safe My Friends

Keven-Moore_1022

Keven Moore works in risk management services. 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. 
 

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