LEGAL CORNER: Steps to Protecting Landowner Liability | Opinion
Editor’s Note: The information in this column is not intended to provide legal advice, but to provide a general understanding of the law. All readers with a legal problem, including those whose questions are discussed here, should consult a lawyer for advice on their particular situation.
In my last column, I talked about the liability of landowners. This week, I’m going to discuss a few steps that should give a landowner the best opportunity to avoid being held accountable.
There are a number of steps a landowner must take into consideration in order to protect against liability. It is important to note that there is no magic solution that will ensure that a landowner will never be responsible for injuries. In addition, there is nothing a landowner can do to prevent someone from filing a complaint against the landowner.
The most important step a landowner can take to protect their operation is to purchase liability insurance. Every property owner should have a liability insurance policy covering all activities that take place on the property. For example, if a landowner has purchased a farm and ranch insurance policy for his cattle operation, but also carries out other activities such as renting the property for deer or bird hunting, the landowner must consult their insurance agent to confirm that additional activities are covered.
The amount of insurance coverage depends on the activity taking place on the property and the location. Landowners should consider the level of risk associated with their operation. For example, a Northwest Texas farm (in the middle of nowhere) that does not host any events or has no guests would likely need a lower amount of coverage than a breeder in eastern Texas, just north of Houston (populated area) which rents day hunts for deer or birds. Talking about the details of an operation with an insurance agent will help a property owner determine the right level of coverage. You should also discuss any endorsements and exclusions that may be contained in your liability policy.
Identify dangerous conditions in the field
As I pointed out in my previous column, Landowner Liability, a landowner has certain obligations to a person on their property. While a landowner is only required to perform a reasonable inspection and make sure or warn of unsafe conditions for a guest, doing so for everyone can help prevent injury altogether. Landowners should think about their properties and seek to identify any potentially dangerous situations. Once these conditions have been identified, owners must take care to warn visitors or to bring them to safety.
Obtain written disclaimers
Disclaimers or disclaimers are simply documents signed by clients agreeing that they will not hold a landowner liable for injuries that occur on the property. Texas courts will generally apply this type of waiver if it is drafted in a manner that complies with Texas law.
Texas courts require that disclaimers be visible and comply with the doctrine of express negligence. These requirements are in place to ensure that a person signing a waiver has fair notice and understands what they are committing to.
The language required in disclaimers must meet very specific requirements and you should therefore consult a lawyer when drafting them. Releases should identify the activity involved and common hazards. Again, it is recommended to seek professional help from a lawyer when drafting them.
Consider using a business entity structure
Another way to limit the potential exposure to liability is to consider outsourcing your land and / or assets to a business entity offering limited liability. This would include a corporation, limited liability company, limited partnership or trust. These entities must be properly formed and managed properly. Many people try to form such entities themselves and / or manage them inappropriately. Failure to do either correctly is fatal to the entity and the landowner would lose liability protection. Factors such as ease of creation, complexity of management, and taxability all need to be taken into account. Hence, this is another area in which to seek legal advice and expertise. When formed and managed properly, these entities can provide limited liability for a landowner if someone is injured on property owned by the entity.
Does a limited liability law apply?
Texas has three limited liability laws: the Recreational Use Act, the Texas Agritourism Act, and the Texas Farm Animal Liability Act. These laws may apply depending on the activities the owner carries out on his property. However, each status has its own specific requirements. For example, are fees charged, do property taxes paid exceed fees, adequate insurance coverage, and do signs need to be posted? Therefore, the landowner should familiarize himself with the requirements of each law and consult a lawyer.
All property owners should be aware of the potential risk of liability if someone is injured on their property. A personal injury lawsuit can be difficult, time consuming and expensive to defend. However, there are a number of steps that can be taken to prevent injury in the first place and to limit potential exposure in the event one does occur. It is very important to consult a lawyer familiar with real estate and business law to help you in this area.
Sam A. Moak is a lawyer with the Huntsville law firm of Moak & Moak, PC. He is licensed to practice in all areas of law by the Supreme Court of Texas, is a member of State Bar College, and a member of the Real Estate, Estates and Trusts Law Section of the State Bar of Texas.