In most states, a landowner’s liability is dependent on the status or classification of the individual on the landowner’s premises. The three classifications are:
The information provided below is general in nature, and can differ from one jurisdiction to another.
A trespasser is generally defined as a person who enters the land of another without the landowner’s permission or consent. Under some circumstances, an individual who enters another’s land with the landowner’s consent but remains after the landowner has asked the individual to leave will then become a trespasser. Generally, a landowner has no duty to warn a trespasser of a known dangerous condition and will not be liable for injury to a trespasser.
However, a landowner may be liable for injuries if the landowner knows or reasonably should have known that trespassers frequently enter the land. Also, a landowner may be liable if the landowner knows that children are or may be attracted to the land by some object or activity thereon.
For such situations, the landowner’s duty is generally to warn of known dangerous conditions or activities. Regarding trespassers, the landowner generally has no duty to make the premises safe or to inspect the land for dangerous conditions.
A licensee enters the land with the landowner’s permission. A social guest is a licensee. A public officer who enters the land in an official capacity is generally considered a licensee. Generally, the licensee is not on the land as a result of the landowner’s business or commercial operations.
The landowner has a duty to warn a licensee of unsafe conditions or activities on the land, and may be liable if he or she fails to provide such a warning. The landowner generally has no duty to put the land in a safe condition, but does have the duty to use reasonable care when carrying out activities on the land. Determining what constitutes “reasonable care” is usually fact-sensitive and can vary somewhat from one situation to another.
The licensee status is important because individuals who enter the land free of charge, such as for recreational purposes, will be considered licensees in many states.
An invitee is generally defined as a person who enters the land for the purpose of engaging in some commercial or business activity of the landowner. A member of the public who enters the land when the land is held open to the public is often considered an invitee. Thus, many states have recognized that there are business invitees and public invitees.
The landowner owes the highest degree of care to invitees. Generally, the landowner has a duty to inspect the premises for dangerous conditions and to make safe all dangerous conditions or activities on the land. While the landowner must still give warning, warning alone is often not sufficient.
For those interested in agritourism, anyone who pays to enter the land or enters the land when it is held open to the public will likely be considered an invitee.
It is worth noting that all states have a recreational use statute that, in general, grants immunity to landowners who directly or indirectly permit persons to use their land for a recreational purpose without charge. Under a recreational use statute, the landowner/possessor is not liable in contract or tort for any personal injury, death, or property damage that arises out of use of the land as long as there are no fees paid. The details of such laws vary by state, so it is important to know the law that applies in your specific situation. A listing of each state’s recreational use statute is available from the National Agricultural Law Center. Click here for more information.
The American Association of Insurance Services notes three common areas of landowner liability resulting from agritourism:
- Animals: The risks of E. coli and bites are well established, and human contact with animals should be avoided, a consideration that might stop many agritourism operations before they start.
- Ladders: Don’t allow members of the public to use ladders, for example while they are picking fruit. Let them pick what they can from the ground, and have farm staff pick produce that is out of reach.
- Transport: Transport hazards are frequently overlooked. A common cause of falls on farms involves members of the public getting on and off hay wagons and other forms of transport by themselves. Customers should always be helped onto and off of vehicles.
Insurance is one risk management tool that agritourism operators can use to reduce the risks associated with landowner liability issues. For more information, see Agritourism Insurance Issues.
Written by: Josh Bailey