EAG-058
9/18
How Landowners Can Protect Themselves from Liability
Tiany Dowell Lashmet, Assistant Professor and Extension Specialist
A common concern for Texas landowners
is how to protect themselves from liability if
someone is injured on their property. ere is
no silver bullet that ensures that a landowner
will not ever be liable for anything, and nothing
they can do to make it impossible for another
person to le a lawsuit against them. However,
they can signicantly limit their chances of
being held liable or limit the nancial burden
of a judgment against them by taking the
following steps before an injury occurs.
Carry Liability Insurance
Every landowner should have a liability
insurance policy that covers every activity
taking place on the property. If a landowner
has a farm and ranch policy, but also conducts
other activities such as a roadside fruit stand or
guided hunts, he or she should conrm that the
additional activities are covered by the provisions
of the farm and ranch policy. An endorsement
may be needed for the additional activities.
How much insurance a landowner should
carry depends on the amount of risk associated
with the operation. For example, a farm in the
middle of nowhere that does not host any sort
of events or have any guests would likely need
a lower coverage amount than a farm that has a
pumpkin patch and corn maze every fall with
thousands of guests. Talk through the details
of your operation with your insurance agent to
determine the right level of coverage and type
of policy you need.
Identify Dangerous Conditions on the Land
and Provide Warnings or Make Them Safe
When a person is injured due to a condition
on a piece of property, a “premises liability
claim” is oen brought against the landowner.
Texas law places injured parties into one of
three categories to determine whether the
defendant is liable to the injured party in a
premises liability case. A landowner owes a
certain level of duty to each category. If the
level of duty is met, the landowner is not liable.
If the landowner fails to meet the required
duty, he or she can be held liable for the injury.
Texas law recognizes the following three
categories and duty levels:
◆ Trespasser: A trespasser is a person who
enters the property without permission.
e duty owed by a landowner is not
to intentionally injure or act with gross
negligence.
Photo by Pixabay
◆ Licensee: A licensee is a person who
enters the property for their own benet.
e duty owed by a landowner is to warn
or make safe any dangerous conditions
the landowner knows about that might
not be obvious to the licensee.
◆ Invitee: An invitee is a person who
enters the property for mutual benet for
themselves and the landowner. e duty
owed by a landowner is to warn or make
safe dangerous conditions the landowner
knows about or should have known
about with a reasonable inspection.
For example, a deep hole covered with
tree limbs could be considered a dangerous
condition. For a trespasser, unless the
landowner knew of the situation and had
evidence of many people being injured,
intentionally created the situation, or some
other egregious facts, he or she would likely
not be liable since the landowner did not act
intentionally or with gross negligence. For
a licensee, the question would be whether
the landowner actually knew about the hole
and, if so, whether he warned the licensee
about the hidden danger. For an invitee, the
question would be whether the landowner
actually knew of the hole, or if the landowner
would have known about it if he or she had
done a reasonable inspection.
As the law makes clear, these are very
fact-specic questions. e most prudent
approach for a landowner is to determine
whether there are dangerous conditions on
their property and, if so, warn people about
those conditions or make them safe. ere
is no set requirement for how warnings may
be given, but if the landowner is entering
into any type of lease or contract, identifying
dangerous conditions in that type of
document is useful.
Obtain Written Liability Releases from
Anyone Entering the Property
Liability releases (also called liability
waivers) are documents signed by guests
agreeing that they will not hold a landowner
liable for injuries that occur on the property.
Releases usually identify the activity
involved, list common dangers associated
with that type of activity, state that the signer
understands those risks, and agrees not to sue
the landowner for negligence.
Texas courts will generally enforce
this type of waiver if draed in a manner
that meets the legal requirements for such
documents. In Texas, waivers must be express
and conspicuous. is means that specic
language must be included that expressly
waives liability for negligence claims and the
waiver may not be hidden in the ne print
where a signer is unlikely to read it. Given
the complex nature of these releases and the
importance of having one that is enforceable,
a landowner should seek the assistance of an
attorney to dra a proper waiver. Spending
the money up front to do so can certainly pay
o in the long run if a lawsuit can be avoided.
Photo by Pixabay
Photo by Kathleen Phillips, Texas A&M AgriLife Extension Service
Ensure that All Limited Liability Statutes
Apply to the Operation
Many states have limited liability statutes
protecting landowners from liability if certain
conditions are met. In Texas, three such
statutes apply: the Texas Recreational Use
Statute, the Texas Agritourism Act, and the
Texas Farm Animal Liability Act. While the
scope and requirements of each statute dier,
they each oer essential, limited liability
protections for Texas landowners.
◆ e Texas Recreational Use Statute
provides that a landowner is not liable
except for intentional acts or gross
negligence if the person injured was
there for a recreational purpose and the
landowner either charged no fee, did not
charge more than a certain amount, or
carried a sucient level of insurance. In
other words, this statute results in the
standard of duty owed to a trespasser
being applied to recreational guests.
◆ e Texas Agritourism Act states that
landowners are not liable for injuries that
occur during activities on agricultural
land for recreational or educational
purposes, regardless of compensation,
if the landowner either hung a required
sign or obtained signed release language.
◆ e Texas Farm Animal Liability Act
oers liability protection for a farm
animal owner if an injury occurs to a
farm animal activity participant and is a
result of an inherent risk of that activity.
Texas landowners should carefully
review the details of these statues and
ensure they take the steps necessary for
the statutes to apply to their operations.
Use a Limited Liability Business Entity
Structure
Landowners may want to consider putting
their business (or a particular part of the
business) into a business entity that oers
limited liability. is could include a limited
liability company, limited partnership,
corporation, or a trust. When formed correctly
and handled properly, these types of entities
can provide limited liability for a landowner
if an injury occurs on property owned by the
entity. For example, if someone gets injured on
property owned by an LLC of which Bob is a
member, Bob would not be personally liable for
the injuries. Conversely, if Bob owned the land
in his own name, his personal assets could be
subject to liability if an injury were to occur.
Many considerations go into whether a business
entity is right for an operation and, if so, which
entity to select. Consult with an accountant and
attorney in your area to help make the right
decision for your operation.
e risk of being sued or held liable for
injuries occurring on their property is a real
concern for Texas landowners. However,
taking responsible steps can limit their
liability and protect their operations.
Texas A&M AgriLife Extension Service
AgriLifeExtension.tamu.edu
More Extension publications can be found at AgriLifeBookstore .org
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The information given herein is for educational purposes only. The Texas A&M AgriLife Extension Service does not make recommendations
for any legal action nor for the content of any legal document. Specic legal questions should always be directed to an attorney-at-law.
