Tip #2: Landowners Should Claim their Rights Under Texas Laws that Limit Liability

By David Braun, Attorney and Principal

This blog is part of the on-going monthly series, Top Ten Legal Tips for the Owner of Rural Land In Texas written by attorney and firm principal, David Braun. Through this series, we hope to help owners of Texas rural land better understand the extent of their rights, and even discover some new ways to protect and preserve their land for generations to come.

Texas has several strong laws protecting landowners from law suits arising out of accidents on their land, but the protection is only valid if a landowner takes active steps to qualify for the limits on liability.  Given how many modern landowners invite guests to enjoy all kinds of potentially dangerous activities on their land, this is an increasingly important protection that every landowner needs make sure they understand and claim.

When Recreational Guests Have Accidents

Texas law can protect landowners from law suits by guests who are injured while participating in any of the following recreational activities: hunting;  fishing; swimming; boating; camping; picnicking; hiking; pleasure driving; nature study, including bird-watching; cave exploration; water skiing and other water sports; or any other activity associated with enjoying nature or the outdoors.  All of these innocent sounding, fun activities for family and friends have at one time or another unfortunately resulted in death or serious injury.  Sadly, such tragedies can be doubled if lawsuits end up financially ruining the landowner or causing him or her to lose their land because they didn’t take steps to qualify for legal protection.

The rules for qualifying for protection under the Texas statute are different for agricultural and non-agricultural land.  Land that is suitable for agriculture is eligible for heightened legal protections.  Agricultural landowners have the law’s full protection from invited and “social” guests, as well as anyone given permission to use the land, such as  hunters.  Qualifying as “agricultural” land is defined by whether the land is “suitable” for agriculture, so our first job as advisors is to help a landowner document the land’s suitability for agriculture, or take additional steps if it is not.

A second important factor is whether the landowner charges for entry to the premises and if they do, how much do they charge and in what circumstances do they charge.  The law’s protections only apply if a landowner collects less for entry than twenty (20) times the property taxes that they paid in the previous calendar year.  For agricultural landowners, charging higher fees for some guests does not void the protection from invited social guests who are not charged.  When Braun & Gresham attorneys review liability protection or write leases for hunting or grazing, we analyze all the taxes being paid, all the fees being charged and how they affect qualification for the protections of this law.

Finally, an owner of land suitable for agriculture can overcome these limitations on fees by having liability insurance that meets the mandatory minimum requirements.  If the insurance covers $1,000,000 of liability for each instance of death, injury or property damage, then the landowner cannot be liable for more, unless there was a deliberate act by the landowner.  The landowner’s liability is further limited to $500,000 for each person who is injured or killed and $100,000 for each single occurrence of property damage.  Our risk management services include a review of insurance coverage.  We recommend having the proper liability insurance in the proper amounts, even if the landowner is qualified for the other protections of the law, because otherwise the law may not completely protect from liability for all accidents.

For example, in one case the Texas Supreme Court found the landowner liable for a tragic accident by declaring the landowner guilty of gross negligence. The statute does not protect landowners from gross negligence, but adequate liability insurance might.  A young child and her parents were the landowners’ guests.  The parents supervised their daughter while she swam in a flood-swollen river upstream from a low water crossing. The current swept the child into a hidden culvert where she drowned. The court reasoned that even though the landowners were not present, they had specific knowledge that the culverts were dangerous and should have warned the guests.

When Horses or Other Livestock Injure Guests

If you were reading carefully in the last section, you may have noticed that horseback riding was not included.  Injuries caused by equine activities and other common livestock have their own law to deal with liability.  The Texas law protects anyone against all liability for death, injury or property damage resulting from dangers or conditions that are an inherent risk of being around farm animals, but only if the owner of the animal takes some basic steps to qualify.

For the protections of this law to apply, a landowner must take care to never provide a guest with any faulty equipment (halters, bridles, saddles, etc.) when allowing the guest to participate in any activity that involves horses or other farm animals.  We recommend a series of steps, including keeping a log of regularly scheduled equipment inspections to ensure it is in good condition.

Landowners must also make prudent efforts to determine the ability of a guest to participate safely in an activity involving farm animals.  Another step we recommend is a questionnaire or checklist to quickly assess whether your guests are actually knowledgeable enough and physically fit enough to be allowed to participate.  Many urban guests may have little or no experience being around horses, cows and other livestock.  You may be surprised by what your guests don’t know.

Finally, the law requires a “farm animal professional” to display clearly readable signage with very specific language warning the guest of the limitations on liability should there be an accident.  We believe it is prudent for non-professional animal owners to display the qualifying signage, so that guests are made aware of the potential dangers.