by Tiffany Dowell Lashmet, Texas Agriculture Law Blog
Answer: With opening weekend for deer season right around the corner, this is a great and timely question. There are two main statutes that could apply in this situation: Texas Recreational Use Statute and Texas Agritourism Act. As you will see, there are many situations, including hunting, where both statutes may be an available defense if someone is injured.
Recreational Use Statute
The Texas Recreational Use statute provides that a landowner, lessee, or occupier of land can be liable only for intentional acts or gross negligence if three requirements are met. In other words, it is not enough for an injured party to prove ordinary negligence to recover damages—he would need to prove that the landowner, lessee, or occupier acted intentionally or with gross negligence, both much higher standards that are far more difficult to prove.
The three requirements for the Recreational Use Statute to apply are:
(1) Agricultural land. “Agricultural land” is defined by the statute as land that is “suitable for” growing crops, raising livestock, or forestry. Note the statute does not require that these activities actually be done, only that the land is suitable for conducting them. (Do note that portions of this statute apply to non-ag land as well, but that is beyond the scope of our focus today).
(2) Recreational use. The plaintiff must have been injured during a recreational activity. The statute defines recreation broadly as “an activity such as hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving (including off-road motorcycling and off-road automobile driving and the use of off-highway vehicles), nature study (including bird watching), cave exploration, waterskiing and other water sports, any other activity associated with enjoying nature or the outdoors, bicycling and mountain biking, disc golf, on-leash and off-leash walking of dogs, radio control flying and related activities, or rock climbing.”
(3) One of three listed monetary requirements. The statute lists three options to satisfy this third monetary element. A landowner, lessee, or occupier need only meet one.
(a) Owner, lessee or occupant does not charge a fee. Thus, if hunters are allowed to come for free, this satisfies the statutory requirement.
(b) The owner, lessee or occupant charges a fee, but the total charges collected for the previous calendar year for all recreational use is not more than 20 times the total amount of ad valorem taxes imposed during the previous calendar year. In summary, a landowner, lessee, or occupier of land would need to calculate all of the revenue collected from recreational users last year. So long as that number is not more than 20 times the ad valorem taxes paid by the landowner on any property in Texas (not limited to the land where hunting occurs), this requirement is met.
(c) The owner, lessee, or occupier of land has liability insurance coverage relating to the premises where the injury occurred equal or greater to $500,000/person, $1 million/ single occurrence of bodily injury or death, and $100,000 for a single occurrence for injury or destruction of property. Carrying that level of insurance satisfies this requirement, regardless of what the landowner charges. Additionally, there is an added benefit of having this level of insurance. The statute provides that total damages may not exceed $1 million if the landowner, lessee or occupant carries this level of insurance or higher and the injury occurs on agricultural land. In other words, this provides a cap on damages that may be recovered.
That is the entire statute. There are no requirements to obtain additional waivers or place signs, and there is no list of exceptions. If a landowner, lessee, or occupier of land satisfies the three listed requirements, they are liable only for intentional acts or gross negligence.
The Texas Agritourism Act provides that an agritourism entity is not liable to any person for injuries to an agritourism participant if the agritourism entity has either hung up the required sign or obtained the required signed release. Let’s break that down.
(1) An “agritourism entity” is a person engaged in the business of providing an agritourism activity, without regard to compensation, including a person who displays exotic animals to the public on agricultural land.
(2) An “agritourism activity” is defined as an activity on agricultural land for recreational or educational purposes of participants without regard to compensation.
(3) The definition of “agricultural land” under the Agritourism Act is land that is “suitable for” growing crops or raising livestock.
(4) The definition of a recreational activity is identical to the definition of the same term in the Recreational Use Statute quoted above.
If we combine these definitions together, we see that the statute applies to a person providing a recreational or educational activity on agricultural land. This, of course, is pretty broadly defined and can certainly apply to people who open up their ranches to allow hunting.
(5) Importantly, landowners must take an additional step in order to achieve the limited liability offered by the Agritourism Act. Landowners have two options:
(a) They can hang up an Agritourism Act sign “in a clearly visible location on or near any premises on which an agritourism activity is conducted.” The sign must contain the following language,
UNDER TEXAS LAW (CHAPTER 75A, CIVIL PRACTICE AND REMEDIES CODE), AN AGRITOURISM ENTITY IS NOT LIABLE
FOR ANY INJURY TO OR DEATH OF AN AGRITOURISM PARTICIPANT RESULTING FROM AN AGRITOURISM ACTIVITY.
(b) Alternatively, landowners can obtain a signed written warning statement. The statement must be signed prior to the activity, by the participant, guardian, or managing conservator, be separate than any other agreement between the agritourism participant and landowner, and be printed in not less than 10-point bold font. The waiver language must read as follows:
AGREEMENT AND WARNING
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 AGRITOURISM ACTIVITIES.
Landowners can satisfy this requirement by either hanging the sign or obtaining the waiver. The one place it seems the waiver may be better than the sign is if there will be minor children on the property. This is because the statute expressly states that the waiver may be signed by parents, guardians, or managing conservators on behalf of minor children.
Do note there is a list of exceptions in the statute listing when the Act’s protections would not be applicable.
This statute offers protection for agricultural landowners if a person is injured during a recreational or educational activity so long as the landowner either has the required signage or signed release.
These statutes are an important part of a liability protection plan for any farm, ranch, or rural land that will allow hunters on the property. There are additional steps I recommend as well, including carrying liability insurance that covers hunters, obtaining general waivers of liability, and having signed hunting leases in place. To read more about this documentation, click here. To read more about steps to protect your land and operation from liability in general, check out Chapter 5 of my Owning Your Piece of Texas handbook or my online course on landowner liability. Finally, for a collection of all my resources related to hunting and hunting leases, click here.