Landowner Liability: An Overview
Land ownership is a part of the American ethos that brings many benefits and many 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 they provide the landowner. Generally, landowners owe the highest duty of care to people that provide the most benefit to the landowners. 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, that the landowner breached that duty, and that damages resulted from the landowner’s 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, no duty of care exists, but landowners may not intentionally injure trespassers. If the presence of frequent trespassers is known to the landowner, then the frequent trespassers must be warned of any dangers on the land, especially dangers 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 children generally lack mature judgment or the ability to appreciate risks. The “attractive nuisance doctrine” elevates the required duty 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 farm ponds are not generally considered attractive nuisances. However, improvements associated with the pond may be deemed an attractive nuisance, like swings, ropes, docks, or boats.
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. Landowners must notify the licensee of hidden dangers and must not act in a way that would cause harm to the licensee. In some jurisdictions, landowners may need to repair dangerous conditions for the benefit of licensees.
Social guests are often categorized as licensees but with a slightly higher standard of care because of the social benefit received by the landowner. Although not an economic benefit, some courts suggest social benefits are enough to warrant greater care. Careless property maintenance 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 property with the landowner’s permission and for the landowner’s benefit. The benefit is often mutual or a business situation, like charging a fee for allowing hunters onto the land. Invitees are owed the highest standard of care of any category. Landowners must make the land reasonably safe and must warn invitees about potential dangers.
General Duty System
Jurisdictions that 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 like the foreseeability of the visitor’s presence, the risk of injury, the benefits of allowing the condition, and the burdens to safeguard the condition.
Landowners that create an extremely dangerous situation may be liable even if they exercise all possible caution. The creation of the dangerous situation alone results in liability for the landowner. In an agricultural context, extremely dangerous situations may arise with animals that frequently bite or are otherwise deemed dangerous and with the storage of chemicals or explosives.
Recreational Use Statutes
Due to the limited amount of publicly accessible government lands and the increasing demand for outdoor recreation, every state has a “recreational use” statute to protect landowners from liability. Recreational use statutes generally protect qualifying landowners from persons injured because of a landowner’s negligence, if the injured persons were given free access to the land for recreational use. Most state statutes are based on either the 1965 Model Act proposed by the Council of State Governments, or the 1979 Model Act proposed by several outdoor groups. Yet, each state’s statute and subsequent court interpretations and applications vary greatly.
Recreational use statutes protect landowners and others with a legal interest in the land. To qualify, the land must be open to the public. Usually, the land does not have to be available at all times, and the landowner can restrict access. But the more restrictions the landowner places on access, the more likely a court will deem the injured party an invitee 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, the only lands covered by recreational use statutes are often agricultural or rural.
Although otherwise covered, landowners can forfeit the statute’s protection through their actions. If a landowner intentionally or recklessly causes injury to recreational users, then 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 expressly limit the liability faced by the equine industry to foster equine activities and resources. Landowners sponsoring equestrian events may find protection in these laws. The statutes prevent liability from the inherent dangers associated with horses and equestrian activities. Some exceptions exist, like providing faulty equipment or misjudging a participant’s ability to control an animal. 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 whole community’s rights are damaged in a more general manner. Courts often use a cost-benefit analysis based on many factors to determine if the alleged interference with property rights was unreasonable. Landowners with production agriculture 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 cases are often unpredictable, 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 be liable for trespass from activities on their land. A trespass occurs by an unpermitted physical invasion of another’s land that interferes with their property rights. Trespasses may arise in agricultural lands from groundwater 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 often include 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, potential landowner liability from environmental damage may arise when crops grown with different production methods are close to each other, and the production methods of one landowner cause damage to the neighbor. An example 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 Also, 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 liability and liability associated with tenants.
Landownership requires the payment of taxes. In each state, agricultural landowners are given a certain amount of special treatment. 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, 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, like CERCLA or Farm Bill provisions that create payment programs or environmental requirements, may impose liability on participating landowners under certain circumstances if the landowners were aware of and sanctioned the tenant’s violations of the statutes.