Land ownership in the United States has many benefits but it also has many potential liabilities. As urbanization spreads farther and farther into what have historically been agricultural lands, the issue of landowner liability has become increasingly important to farmers. Though landowners are liable under a wide variety of circumstances, the two most common and serious sources of liability are those that arise from the presence of people on your land and those that arise due to activities taking place on your land.
Liability for persons on land
Most states determine the duty of care required by a land owner based on the classification of the entrant upon his land. Under this legal theory, a person entering upon a landowner’s land would be classified as a trespasser, licensee, or invitee. A trespasser is someone who is on the land without the owner’s permission and from whose presence the landowner receives no benefit. Generally, a landowner owes no duty of care to a trespasser but may take no steps to intentionally harm the trespasser in any way. If the landowner is aware of frequent trespassers upon his land, then his duty of care may be somewhat higher and the trespassers must be warned of any dangers, especially those they are unlikely to discover themselves, that could cause serious injury or death. It is also considered appropriate to alert the proper law enforcement authorities if there are frequent, unwelcomed, and previously warned trespassers on the property. While nothing may happen after law enforcement authorities are alerted, that step may be an important one should activities involving trespassers result in harm or physical injury.
A landowner owes a greater duty of care to child trespassers in some instances due to the fact that children lack the ability to appreciate risks and apply mature judgment. The “attractive nuisance doctrine” requires that the level of care for child trespassers be adequate to protect young children from injury if any condition exists on the land that could lure children into danger. The Courts have discretion to determine liability of the landowner in relationship to the nature of the injury, the nature of the “attractive condition,” and the age of the child, with younger children garnering more latitude from the Courts than older children with perceived greater knowledge of dangers.
Naturally existing dangers, such as ponds and other bodies of water, generally do not require any additional level of care. However, the landowner must check with the local jurisdiction in which he/she resides as there may be decisions from the Courts in that particular state requiring landowners to take special precautions when bodies of water (either naturally occurring or manmade) exist on a property. Any improvements associated with the pond or body of water, such as boat docks, boats, or swings, may be considered as an attractive nuisance and require a greater duty of care. The greater duty of care may be anything from a sign warning entrants to the dangers posed by the water bodies to a fence around the body of water much as is required consistently of landowners who build swimming pools on their property. Consulting with local insurance agents and attorneys more familiar with a particular state’s laws and common practices is advisable.
A licensee is someone on the landowner’s property with the permission of the owner that does not provide a benefit to the landowner. Social guests are an example of a licensee. A landowner owes a higher duty of care to a licensee than to a trespasser. A landowner must notify a licensee of any hidden dangers on the property and not act in any way that could cause harm to the licensee. In some jurisdictions, a landowner may be required to repair any dangerous conditions for the benefit of licensees. Again, it is critical to check with local attorneys and insurance agents concerning the responsibilities of the landowner.
An invitee is someone who is on the land with the landowner’s permission and from whom the landowner receives some sort of benefit. An example of an invitee is a hunter or fisherman who pays a fee to use the property. An invitee is owed the highest duty of care by a landowner. A landowner is required to make the property reasonably safe for the invitee and is required to warn an invitee about any potential dangers on the property.
Some jurisdictions around the country have adopted a system of landowner liability based on a general duty of reasonable care for foreseeable risks, and many commentators are of the opinion that this entire area of the law is moving toward this general reasonable care standard. Under this system, a landowner owes a duty of reasonable care under all circumstances and to anyone on his property for any reason. Courts under this system determine liability by looking at such factors as foreseeability of the visitor’s presence, risk of injury, benefits of the harmful condition, and burden imposed on the landowner by correcting the condition.
In those instances where the landowner has created a situation that is extremely dangerous, the doctrine of “strict liability” is applied by the courts. The doctrine of strict liability holds that the creation of the dangerous situation alone results in liability for the landowner. An example of the creation of a dangerous situation would be the storage of chemicals or explosives on the property or the keeping of animals that are deemed dangerous. The doctrine of strict liability will be applied both in jurisdictions that recognize a general duty of care by a landowner and those that recognize a duty of care based on an entrant’s classification.
Liability for activities on land
A landowner may be liable for activities that take place on his/her property if those activities unreasonably interfere with the use and enjoyment of other people’s property. Activities that unreasonably interfere with the use and enjoyment of another person’s property generally fall into one of three categories. These categories are nuisance and trespass, which are common law violations, and the violation of environmental regulations.
The first type of activity that unreasonably interferes with another person’s use and enjoyment of his/her property is called a “nuisance.” A nuisance may either be a “private nuisance” in which it affects a small amount of adjacent land or a relatively close neighbor or it may be a “public nuisance” in which a larger number of people, such as an entire neighborhood or community are affected. Excessive animal noise, dust, tractor noise, flies, and noxious odors are examples of things which could constitute a nuisance. Nuisance claims are civil matters, not criminal, and therefore must be brought before the court by a complaining witness. In the case of a public nuisance, the action may be brought by an individual, association, or municipality.
When determining whether one landowner’s use of land is an “unreasonable” interference of another landowner’s use of land, the court must weigh several factors. First, the court must determine whether the offending use is suitable for the area in which it is being conducted. Second, the court must determine if the extent and character of the harm, as well as the nature of the use being interfered with, is appropriate for the area. Third, the court must determine what benefits, if any, are being provided by the offending use and whether the harm can be avoided if the activity were allowed to continue. The court will balance these factors as well as any other relevant evidence in order to resolve the issue.
If a nuisance is found to exist, the court has several options in deciding how to remedy the situation. These remedies include such options as money damages and/or an injunction. Money damages compensate a complaining landowner for the interference with the use and enjoyment of his/her property. An injunction is a court order ordering that the offending activity be stopped. If an activity is ordered stopped, the court may additionally award damages to the complaining party for the harm done before the activity was stopped. If the court allows the activity to continue, damages may be awarded to cover past and/or future injury. Most jurisdictions give courts wide latitude in determining whether an activity is a nuisance and what, if anything, should be done to remedy the situation. In some circumstances, farmers and ranchers have been required to move the offending activity away from the neighboring and offended party. Again, the Courts are given wide latitude in fashioning appropriate remedies.
The second type of activity that unreasonably interferes with another person’s use and enjoyment of his/her property is called a “trespass.” A trespass occurs when there is a physical invasion of the land of another without his/her permission. A common example of a trespass that arises from agricultural lands is the unauthorized invasion of wayward livestock onto another person’s land. A landowner is liable under the theory of trespass for any damage done as a result of the trespass. Most states have statutes that determine the amount of liability for straying livestock and the responsibilities of the livestock owner as well as the landowner upon whose property the livestock stray.
The third activity is the liability that arises from the violation of environmental regulations. Environmental regulations may be federal, state, or local regulations. 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 are but a few examples of environmental regulations from which a violation may result in landowner liability. Due to the complexities of environmental regulations, a full discussion of each environmental law relating to landowners will not be discussed in this module. Instead, the operation owner should consult with properly trained environmental advisors as well as state and local environmental regulatory officials to determine the scope and manner in which the environmental regulations affect the landowner and goat operation owner in their jurisdiction.
Landowner liability insurance
One way to mitigate the exposure to liability that one has as a landowner is to purchase landowner liability insurance. Though insurance varies by state and by insurance carrier, the basic premise behind landowner liability insurance is to minimize the exposure a landowner has to claims arising from his ownership of real property. When searching for landowner liability insurance make sure to understand the scope of the insurance, who is protected by the insurance, as well as the payment limits of the insurance. Close readings of available policies are absolutely necessary and the individual producer may have to spend a considerable amount of time in finding the right liability coverage to address their particular operation.
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