Liability Matters: Ways Landowners Can Manage Their Legal Risks This Fall

Tuesday, October 25th, 2011

Pumpkin patches, corn mazes and deer hunting usher in a time of year when farmers and land owners invite people on their property for a variety of reasons. While agritourism activities and hunting leases often provide farmers and landowners with additional income this time of year, the presence of guests on one's property may materially alter the landowner's potential liability. 

Fortunately, Georgia law provides property owners, who allow third parties to hunt, fish and provide educational and entertainment services on their land, with significant tools to manage the increased legal risks associated with inviting others on their property. A landowner, who charges admission for a person 18 years of age or older to hunt or fish for purposes of agritourism, is immune from civil liability for any injuries caused by the inherent risk associated with agritourism, hunting, or fishing activities. To obtain this immunity, the landowner's conduct must not constitute gross negligence or willful or wanton misconduct.

While it is difficult to prove gross negligence generally, to guard against such a claim, a Plaintiff has an even more difficult time satisfying this burden if an inviting property owner implements a reasonable inspection procedure.  Some examples of such a procedure are, requiring the owner or property manager to check air pressure on hayride trailer tires, reviewing deer hunting stands for safety, and identifying slip and trip hazards where one would expect people to traverse.  Such inspection procedures are also important because this civil immunity does not apply to individuals who are under 18 years old participating in agritourism activities.

In order to obtain this civil immunity where the property owner is charging an admission fee for an agritourism activity that involves more than a pick your own operation (i.e., hay-ride or corn maze), the landowner must take two important steps in warning his guest.  First, the landowner must post at the main point of entry to his property a sign with statutory mandated language in black letters, with each letter being a minimum of one inch in height.  While many local farm bureau offices have pre-printed signs that meet the statutory requirements, the required language is found in O.C.G.A. § 51-3-31.   In addition to the warning sign, for civil immunity to apply, the person who has paid admission to the landowner must sign a waiver of liability form.  If leasing land for hunting or fishing activities, in addition to including such waiver of liability language in any lease, a property owner may consider including language that would require the leasing person to obtain liability insurance or  to indemnify and defend the owner if sued by a third party based on the leasing party's use of the host property.  Property owners should have legal counsel draft the needed waiver of liability forms and any land leases that seek to limit the property owner's potential liability. 

A different law provides civil immunity to landowners who allow individuals to use their property for recreational purposes for no charge.  Specifically, an owner of land has no legal duty to keep his premises safe for entry or use by others for recreational purposes when he is not charging a fee, except he cannot willfully or maliciously fail to guard or warn against a dangerous condition or activity.  To satisfy this willful or malicious standard, a guest on one's land would have to prove the property owner had actual knowledge that a condition existed involving unreasonable risk of death or serious bodily harm to individuals coming onto the property.  Under this statute, called the Recreational Property Act, "recreational purpose" includes hunting, fishing, swimming, boating, camping, picnicking, hiking, and pleasure driving.

It is also important that landowners take the necessary steps to obtain the appropriate insurance coverage. Often times a basic farmers' owners policy may not be sufficient to cover risks associated with having guests on one's land for commercial purposes.  An additional endorsement, or in some cases, a commercial general liability policy may be necessary.  The landowner should consult with an insurance professional to confirm coverage for any activities for which the owner is charging an admission fee.

Policy makers in this state have taken significant steps to create laws that encourage property owners to share their land. However, landowners must remain diligent in availing themselves of these statutory protections so that they can continue to reap the full benefits from those eager to enjoy the sights and sounds of nature.

Joel McKie is the leader of Hall Booth Smith & Slover, P.C.'s Agriculture Practice Group.  HBSS is a statewide law firm with offices in Atlanta, Athens, Columbus, Albany, Tifton, and Brunswick. Joel litigates cases on behalf of farmers and agribusinesses, including legal issues surrounding seed disputes.  Joel can be reached at jmckie@hbss.net or via telephone at (404)586-6608.

The information contained herein is not intended to constitute legal and insurance advice and should not be relied upon in lieu of consultation with an attorney or appropriate insurance professional.

Hall Booth Smith & Slover, P.C.

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