Expert: Landowners Seldom Legally Liable for Granting Free Recreational Access

Would private landowners grant hunting and fishing access more readily if they weren’t legally liable for the health and safety … Continued

Would private landowners grant hunting and fishing access more readily if they weren’t legally liable for the health and safety of their gun- and rod-wielding visitors?

In discussions of expanding access around the country, you hear this a lot: that legal liability is a big impediment to recreational access. But a review of case law indicates that it’s almost always a non-issue.

That’s the conclusion of Dr. Brett Wright, a professor of parks, recreation, and tourism management at Clemson University. He told attendees at last month’s North American Whitetail Summit that access for hunting remains a complex issue, but that liability exposure to landowners is more “myth than reality.”

In other words, if a hunter stumbles over a stump on your land and wrenches his knee, as the property owner you are almost certainly not responsible for the injury. Same for an angler who buries a treble hook in his buddy’s cheek while fishing your bass pond.

My own lawyers require me to say this: every case is unique and every landowner and guest should research their own legal responsibilities and liability exposure.

But the take-home message is that as long as you don’t charge a lease payment or a trespass fee, you probably have nothing to worry about – from a legal standpoint – if you invite a hunter or angler to your property. Knowing that, liability should not be an impediment to inviting sportsmen to recreate on your land.

“We must explode this myth of landowner liability,” said Dr. Wright, who noted that he’s a researcher, not a liability lawyer or a claims adjuster. Wright says the statistics are clear.

“The rate of liability cases has gone up from 17 to 22 percent” in the last decade, but on private land, the rate has declined 8 percent. “And almost none (of those private-land) cases had anything to do with hunting. Motorized sports and water sports by far had more legal action associated with those types of recreation.”

Still, liability is an issue some landowners cite when denying access to hunters. Some states, such as New York, are looking to clarify laws dealing with landowner liabity when granting recreational access.

One of the great things about the Whitetail Summit, hosted by the Quality Deer Management Association, was the diverse mix of participants, many of whom shared tables at meals and breaks. During one of those informal chats, I asked the owner of a large insurance company about his take on Wright’s conclusion.

“From an individual landowner’s perspective, he’s probably correct,” said the insurance executive. “In almost every case I’m familiar with, legal liability resides with the guest, not the host. Plus, most homeowner policies extend some level of coverage to guests who are invited on to the property.”

But legal liability changes when you charge for access. The executive noted that he attended the summit “because we represent many of the largest landowners in the country—large corporate timberlands—and we indemnify them any time they lease land or host a hunting club on their properties.”

The insurance executive noted that the commercial transaction influences the liability curve.

“When you enter in to a contract for access, the calculus changes. We are interested in covering landowners in case of an accident, or a fire, or personal injury, or in a worst-case scenario, if one hunter shoots another.”