Landowner Liability: An Overview
Land ownership is a part of the American ethos that brings with it many benefits and a multitude of potential liabilities. Agricultural landowners’ liability may be exacerbated by urbanization as farming operations become surrounded by urban areas and as urban dwellers pursue more outdoor recreational activities. This overview focuses on the major areas for potential landowner liability resulting from the mere ownership of agricultural land. However, state laws vary in their treatment of landowner liability and careful study of each jurisdiction’s law is necessary to avoid pitfalls. For a more complete discussion of legal issues surrounding the development of agricultural lands, please visit the Urban Encroachment Reading Room.
Liability for Persons on the Land
A landowner’s liability to others upon his property traditionally rests in negligence actions with a duty of care that depends on the entrant’s classification. The classification of people entering the land is based on the benefit that they provide the landowner. Generally, landowners owe the highest duty of care to people that provide the most benefit to them. Some jurisdictions have now moved from the classification system to a more general duty of care owed by the landowner. Both types of liability assignment are based on negligence and require that the injured party prove that the landowner owed a duty to the injured party and breached that duty, and that damages resulted from that act or omission.
The lowest duty of care is owed to adult trespassers who are on the land without permission and do not provide any benefit to the landowner. Generally, there is no duty of care, but landowners may not intentionally injure trespassers. If the presence of frequent trespassers is known to the landowner, the duty of care may be raised slightly, and the trespassers must be warned of any dangers, especially those they are unlikely to discover themselves that could cause serious injury or death.
Landowners owe child trespassers a greater duty of care in certain instances because of the children’s lack of mature judgment and their inability to appreciate risks. The “attractive nuisance doctrine” elevates the required level of care for child trespassers by requiring that landowners take reasonable measures to protect young children from injury if an artificial condition created or maintained by the landowner exists in an area where it could lure children into danger. Natural dangers inherent in the land, such as slopes or bodies of water, normally do not raise the standard of care. The treatment of farm ponds varies by jurisdiction and circumstance, but they are not generally considered attractive nuisances. However, improvements associated with the pond, such as swings, ropes, docks, or boats, may be deemed an attractive nuisance.
Licensees are people on the landowner’s property with the owner’s permission who do not provide a benefit to the landowner. Landowners owe a higher duty of care to licensees than to trespassers and must notify the licensee of hidden dangers and not act in a way that would cause harm to the licensee. In some jurisdictions, dangerous conditions may need to be repaired for the benefit of licensees.
Social guests are often categorized as licensees but with a slightly higher standard of care, due to the social benefit received by the landowner. Although not an economic benefit, courts suggest that it is enough to warrant greater care. Careless maintenance of the property could subject a landowner to liability for a social guest’s injury. In some jurisdictions, social guests are elevated to the standard of care given to invitees.
Invitees are on the land with the landowner’s permission and for the landowner’s benefit, often a mutual benefit or a business situation such as charging a fee for allowing hunters onto the land, and are owed the highest standard of care of any category. Landowners are required to make the land reasonably safe and to warn invitees about potential dangers.
General Duty System
Jurisdictions that have shifted from assigning a landowner’s duty of care based on a classification system now use a system based on a general duty of reasonable care for foreseeable risks. Landowners owe a duty of reasonable care under all circumstances. To determine liability courts use factors such as foreseeability of the visitor’s presence, risk of injury, benefits of the condition, and the burdens to safeguard the condition.
Landowners that create a situation that is extremely dangerous may be liable even if they exercise all possible caution. Creation of the dangerous situation alone results in liability for the landowner. This situation often arises in an agricultural context with animals that frequently bite or are otherwise deemed dangerous and with the storage of chemicals or explosives.
Recreational Use Statutes
Due to limits on the amount of government lands open to the public for outdoor recreation and the increasing demand for outdoor recreation, every state has enacted its own recreational use statute to protect landowners from liability. These statutes generally protect qualifying landowners from persons injured as a result of a landowner’s negligence who were given free access to the land for recreational use. Most state statutes are based on one of two model acts, the 1965 Model Act proposed by the Council of State Governments or the 1979 Model Act proposed by several outdoor groups, but each state’s statute and subsequent court interpretations and applications vary greatly.
These statutes protect landowners and others with a legal interest in the land. To be protected the land must be open to the public. Usually, the land does not have to be open at all times and the landowner can still restrict access, but the more restrictions the landowner places on the access the more likely that a court will deem the injured party an invited guest not covered by the recreational use statute.
Only recreational uses are protected under the statutes. Some statutes list only the allowable recreational activities, while others list activities but leave room for judicial interpretation of other permissible activities. The typical activities list includes hunting, fishing, swimming, boating, camping, picnicking, hiking, pleasure driving, nature study, water skiing, water sports, and viewing and enjoying historical, archeological, scenic, or scientific sites. In addition to limited uses, often the only lands covered by recreational use statutes are agricultural or rural lands.
Although otherwise covered, landowners can forfeit the protection of the statute through their actions. If a landowner intentionally or recklessly causes injury to recreational users statutory protection will be lost. The acceptance or requirement of money or other valuable consideration for the use of the land can suspend a landowner’s protection under recreational use statutes.
Equine Activity Liability Statutes
Many states have adopted statutes to specifically limit the liability faced by the equine industry in order to foster equine activities and resources. Landowners that sponsor equestrian events may be subject to the protections of these laws. The statutes prevent liability from the inherent dangers associated with horses and equestrian activities. Some exceptions exist, such as providing faulty equipment or misjudging a participant’s ability to control an animal, and in some instances waivers and releases are required.
Liability for Activities on the Land
Liability for nuisance is based on the idea that activities on a landowner’s property may not unreasonably interfere with the use and enjoyment of other people’s property. A nuisance may be either private or public. In a private nuisance, only a small number of property owners are damaged in a discrete manner. In a public nuisance, the community’s rights as a whole are damaged in a more general manner. Courts often use a cost-benefit analysis based on many factors in order to determine if the alleged interference with property rights was unreasonable. Landowners with production agricultural operations may become subject to nuisance actions if the effects of the operation excessively interfere with neighboring property owners’ rights, especially if the region is becoming more urbanized. Right-to-farm statutes may afford some protections to farmers, but the outcome of these types of cases is often uncertain, even if the agricultural operation is conducted legally and according to acceptable management practices. If plaintiffs prevail, farmers may be forced to pay damages or even cease operations.
Landowners may potentially be liable for trespass for activities on their land. A trespass occurs when there is an unpermitted physical invasion of another’s land that interferes with their property rights. Trespasses may arise from agricultural lands in the form of ground water contamination, odors, dust, or wayward livestock
Landowners are potentially liable for actions that violate environmental regulations. These laws and regulations may be federal, state, or local and include such things as the Clean Water Act, the Clean Air Act, the Endangered Species Act, the Federal Insecticide, Fungicide, and Rodenticide Act, and the Comprehensive Environmental Response, Compensation, and Liability Act.
In addition to statutory environmental liabilities, potential landowner liability from environmental damage may arise in a situations where crops grown with different production methods are in close proximity to each other, and the production methods of one landowner cause damage to the neighbor. This may arise from pesticides drifting from nonorganic crop fields to organic crop fields causing damage from the loss of organic certification and a corresponding loss of value in the crop. It may also arise where genetically modified pollen drifts from a genetically modified crop into a nongenetically modified crop causing gene contamination and a loss in value of the crop.
Other Potential Liabilities
Landowners are potentially liable under a wide variety of circumstances. This overview describes the major areas for landowner liability, but other potential areas of liability exist including potential tax liabilities and liability associated with tenants.
Landownership requires the payment of taxes. In each state a certain amount of special treatment is given to agricultural landowners. Some of these statutes creating the preferential treatment for agricultural lands are intended to preserve the rural character of the land and, as a result, also contain rollback provisions. These provisions are designed to recapture some of the lost tax revenue if the agricultural lands are developed for nonagricultural uses.
Generally, landowners are not liable for the actions of their tenants. Some exceptions exist such as when landowners conceal dangerous conditions or if a landlord agrees to repair the land and fails to do so properly. Also, some statutes, such as CERCLA or provisions of the Farm Bill that create payment programs or environmental requirements, may impose liability on participating landowners under certain circumstances if they were aware and sanctioned the tenant’s violations of the statutes.